IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT: THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE FMA 189 of 1998 Ahmed Hossain & Anr. Vs. Mst. Rahima Bibi, Since deceased, Rep. by Md. Akhtar & Ors. For the Appellants : Mr. Manik Das Mr. Aniruddha Sinha For the Respondents : Mr. Gopal Chandra Ghosh Mr. Snehasis Jana Heard on : 09.01.2025 Judgment on : 14.02.2025 Dr. Ajoy Kumar Mukherjee , J.: 1. The instant appeal has been preferred against the order of remand, upon allowing amendment of written statement at the instance of the defendants/ respondents, passed by the learned Appellate Court below. 2. The plaint case in T.S. No. 579 of 1977 is that while the plaintiffs/appellants were minors and permanent resident of Gaya, Bihar, their father Akhtar Hossain representing them as their guardian purchased the thika tenancy with regard to the suit property by a registered deed dated 15th October, 1966 from the Thika Tenant Sk. Nasiruddin son of one 2 Sk. Nanhe, who claimed to be the owner by way of inheritance from his mother Akbari Bibi. 3. Further case of the plaintiff is that after purchase the said vendor Nasiruddin was engaged as care taker of the said property for the purpose of collecting rent from Bharatiyas and for payment of tax to the corporation etc. and to furnish accounts. Said Nasiruddin was allowed to occupy six rooms which was converted into two rooms covering the same area. After the death of Nasiruddin in the year of 1974, his widow Mst. Rahiman Bibi, who is the defendant, solicited the plaintiffs for collection of rent like her husband and to remain in occupation of the rooms which her husband was occupying as caretaker. Plaintiff’s further case is that after a year of such arrangement the defendant betrayed their confidence and started giving rent receipts on her own account instead of in the account of the plaintiff and she failed to render accounts since January, 1976. As such the authority given to the defendant by the plaintiff was withdrawn by a letter dated 16.11.1976 and she was asked to render accounts. When she failed to give accounts the plaintiff filed suit praying for a decree for rendition of accounts against the defendants as agent of plaintiff and also for permanent injunction and during pendency of suit prayer for recovery of possession of five rooms was also incorporated in the plaint. 4. Defence case as made out in the said suit is that Akbari Bibi @ Akbari Bewa was the owner of the property in suit and she brought up the defendant and also maintained her. Defence further case is that said Akbari Biwi never married and she looked after the defendant as her own daughter. Accordingly before her death in the year 1951, she in 3 consideration of her love and affection towards the defendant made an oral heba of the suit property in favour of the defendant and completely divested herself from her ownership and possession thereof and issued letter of attornment to the monthly tenants and also to the superior land lord. The defendant accepted the Heba and got possession of the suit property by realizing rent from the monthly tenants and by granting rent receipts in her own name and exercising all her acts of ownership to the exclusion of everybody concerned. She also denied the plaint case of her status as caretaker or rent collector. She specifically stated that Sk. Nasiruddin was not the son of Akbari Biwi @ Akbari Bewa and as such Nasiruddin cannot inherit the suit property as her heir and he had no right title interest or possession in the suit property. Defendants specific case is that plaintiffs by their so called deed of purchase from Nasiruddin did not acquire any right title interest of the property and said sale deed by Nasiruddin is collusive and forged and without any consideration. 5. Learned Trial Court after hearing both the parties decreed the suit holding that the defendant has failed to prove that Akbari Biwi was not married and Sk Nasiruddin was not her son and on the other hand plaintiffs proved that Nasiruddin was the son of Sk. Nanhe by dint of exhibit-1 i.e. the deed dated 15.10.1966, wherein Nasiruddin’s father name has been shown as Nanhe. 6. Against said judgment and decree passed by the trial court the defendant preferred T.A. no. 64 of 1993. The defendant during pendency of the said appeal contended that while searching documents, she got an old registered document of loan with charge dated 10.01.1914, from which it 4 transpired to her for the first time that Akbari Bibi was a widow, though all along since her childhood she had an impression that Akbari Bibi was unmarried and accordingly she stated in her written statement that Akbari Bibi was unmarried, though it is all along her specific case that Sk. Nasiruddin was not the son of Akbari Bibi. 7. In such view of the matter she filed an application for amendment of her written statement for introducing the said fact before the Appellate court. The plaintiff/appellant filed written objection against the said application. Learned Appellate Court below by the impugned order dated 21.11.1997 allowed the said application for amendment and remanded the suit for hearing afresh and thereby set aside the earlier judgment and decree passed by the Trial court. 8. Being aggrieved by that impugned judgment dated 21.11.1997, Mr. Das learned Counsel for the appellant argued that the application for amendment of the written statement was filed by the defendant long after the decree is passed and four years after filing of the appeal. He strenuously argued that discovery of a new document by any of the parties at the appellate stage can be dealt with only under order XLI rule 27 of the Code, having a very narrow scope. The only clause which could have been made applicable under XLI rule 27 in this context is clause (aa) but the said clause also does not apply in the present case as no such case has been made out either in the amendment application or in the impugned order. There is even no pleading as to exercise of due diligence by the original defendant. He further contended that additional evidence under order XLI rule 27 cannot be claimed as of right and the power has been 5 bestowed upon the court to use it sparingly, only when the appellate court finds that it cannot pronounce judgment without such evidence but such a circumstances is absent in the present case. In this context he relied upon the judgment of Union Of india Vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148 and State of U.P. Vs. Manbodhan Lal Srivastava reported in AIR 1957 SC 912. 9. He further contended that defendant has made an attempt to manufacture document to stall the judgment and decree of the Trial Court and the present amendment application is totally inconsistent and contradictory to the plea taking by her before the ld. Trial court. The original defendant contested the suit on the ground that Akbari bewa was a spinster and the defendant was the owner of the suit property by virtue of oral heba executed by Akbari bewa and also by adverse possession. But before the appellate court below the defendant took an opposite plea that the said Akbari Bewa was married. Accordingly Mr. Das contended that inconsistent and contradictory allegations in negation to the admitted position of the facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. 10. In this context he relied upon the B.K. Narrayana Pillai Vs. parameswaran Pillai and another reported in (2000) 1 SCC 712 and a judgment of this court passed in FMA 2326 of 2005. 11. Mr. Das further contended that defendant cannot be permitted to take the plea of acquisition of title by oral heba and adverse possession at the same time as they are mutually destructive and inconsistent. 6 12. In this context he relied upon judgments reported in (1996) 1 SCC 639, Mohan Lal (deceased) through his LRS. kachru and other Vs. Mirza Abdul Gaffar and another and (2004) 10 SCC 779, Karnataka Board of WAKF Vs. Government of India and others. 13. Mr. Das further argued that the amendment is also not required in view of the fact that even assuming that Nasiruddin was not the son of Akbari Bewa, the same will not confer any right title or interest on the defendant as the defendant had failed to prove her alleged ownership, as the appellants had proved their title deed and also recording their names in the KMC, which remains unchallenged. The ownership of the appellants is also established from the documents being exhibit 4 (b) and the relation of Akbari and Nasiruddin as mother and son is also established from exhibit- 5. Accordingly appellant contended that the impugned order is bad and mis conceived and is liable to be set aside. 14. Mr. Gopal Chandra Ghosh learned counsel appearing on behalf of the respondents submits that the amendment of the pleading can be made at any stage of the proceeding. Here in the present case, after discovery of new documents during pendency of the appeal, which was not within the knowledge of the defendants and which is vital for effective adjudication of the core issue in the suit and as such the defendant prayed for amendment of written statement. Mr. Ghosh further contended that though there is conflict amongst the exhibited documents with regard to marital status of Akbari Bibi and father’s name of Sk. Nasiruddin but the Trial court passed the judgment on the basis of surmise and conjecture. He further argued that since the amendment sought for on the basis of an authentic 7 documents to bring the actual fact on record for effective adjudication of the matter, the appellate court has definitely power and jurisdiction to allow amendment of pleading specially when the issue pertains to amendment of written statement. 15. Mr. Ghosh further argued that defendant by way of amendment of written statement is not introducing any new fact but her stand to the fact that Akbari was not the mother of Nasiruddin remains unchanged and unaltered and therefore, such amendment is permissible. In this context he relied upon the judgment reported in 1984 (Supp) SCC 594, Panchdeo Narain Srivastava Vs. KM. Jyoti Sahay and Another and 2000 (1) SCC 712, Narayan Pillai Vs. Parameswaran Pillai and Another. He further contended that if an admission is made in the pleading by a mistake that can be explained by amending the written statement specially when admission made is erroneous and on assuming fact. In this context he relied upon the judgment reported in (2004) SCC Online P&H 643, Harwinder Singh Vs. Balwinder Singh and others. 16. Mr. Ghosh further argued that in the present case the defendant has categorically stated that on the basis of his impression since childhood that Akbari was unmarried which is erroneous and can be corrected by way of amendment and it cannot be treated as withdrawal of an admission, while the other stand to the effect that Akbari is not the mother of Nasiruddin still remain unaffected. In this context he also relied upon 1995 Supp (3) SCC 179, Basavan Jaggu Dhobi Vs. Sukhnandan Ramdas Choudhary (dead) through LRS and others. He further contended that if the exhibited document and the pleading on behalf of the plaintiff is properly 8 scrutinized it would be clear that the plaintiff/appellant has miserably failed to establish their title and possession in respect of the suit property and the emphasis in the marital status of Akbari Bewa as stated in the original written statement of the respondent was under erroneous presumption and upon discovery of the old document, the correct state of affairs reveals to be otherwise. As such the defendant/respondent applied for the amendment of written statement and the court below rightly allowed the same. Accordingly Mr. Ghosh contended that the scope and sphere of arguments and consideration by the court in the present appeal against the order of remand is very limited and since the court below has decided the issue from the correct perspective of law, the order impugned does not call for interference. 17. I have considered submissions made by both the parties. 18. While passing the judgment the Trial Court expressed that the facts of the case is confusing since form the evidence of the parties the original owner of the property somewhere described as Bibi and somewhere as Bewa and as such he realized that the entire case depends upon the fact, whether Nasiruddin was the son of Akbari or whether he was her son-in- law, being the husband of defendant, who described herself as adopted daughter of Akbari and who according to the initial written statement never married. He also stated in his judgment that there are contradictory documents in the record which were marked exhibit followed by evidence adduced by the parties. 19. The Trial Court in his judgment also expressed his confusion in determining who was the father of Nasiruddin because in Exhibit 1, it has 9 been stated that one Sk Nanhe was the father of Nasiruddin which also corroborates with the certified copy of voter list prepared in 1961 and marked Exhibit 8. On the contrary defendant in her evidence has stated that her father-in law’s name was Wali Md. and not Sk Nanhe in terms of Exhibit 6(a). However court below did not place reliance upon the evidence of defendant or the entry appearing in 6(a) but he came to a conclusion that Sk Nanhe was the father of Nasiruddin, since the said name is appearing in the registered deed marked Exhibit 1, which appeared to be more authentic. Now in the alleged subsequent discovered registered deed dated 10.01.1914, the name of the husband of Akbari Bibi appears to be Nur Mohammad. 20. Infact the Trial court had based his judgment taking into consideration that Sk Nanhe was the father of Nasiruddin, as his name is appearing in registered deed and that Akbori was a married lady and that defendant failed to prove her case that she became owner of the suit property by way of oral heba made by Akbori. 21. However, during course of discussion the Trial Court failed to frame issue in order to decide the material question, whether Nasiruddin had any saleable interest in the suit property to transfer the same in favour of plaintiff by dint of registered deed marked Exhibit-1. In this context the Trial Court only referred certain contradictions among exhibited documents and the evidence adduced by the parties and ultimately relied upon recital made in exhibit-1. 22. Needless to say that under order XLI, Rule 23A of C.P.C. the order of remand passed without recording finding that essential issues were not 10 framed or that retrial is necessary in the case, is improper. In order to invoke the jurisdiction of the appellate court in terms of Rule 23A, firstly decree has to be reversed in appeal and secondly retrial must be considered necessary. There is no observation in the order impugned that the decision of the trial court has been materially prejudiced either party for want of proper trial or an effectual or complete adjudication by reason of any error or omission or irregularity, instead merely by allowing the amendment application, he invoked his jurisdiction under Rule 23A of order XLI, which in my considered view is not proper. 23. Furthermore the observation of the court below that “adjudication should be arrived at on the basis of complete evidence and it will be a better judgment than what has been passed by the Trial Court on the basis of conjecture on the question whether Akbari was married or not” cannot be a valid ground to invoke Order XLI, Rule 23A of C.P.C. 24. In such view of the matter though first appellate court was justified in allowing defendant’s prayer for amendment of written statement by which defendant wanted to incorporate relevant portion of recital made in the registered deed of loan with charge dated 10.01.1914 in favour of one Krishna Das Bairagi by Akbari, wife of Late Nur Mohammed of 2, Gas street, Beleghata and one more pleading that she had no issue, but the court below has erred in law in remanding the appeal under Order XLI Rule 23A of Code of Civil procedure after setting aside the judgment of Trial Court. Since he has not made any specific observation that a retrial of the suit is considered necessary, instead he ought to have remanded the case under Order XLI Rule 25 read with Rule 26 of CPC as question of 11 Nasiruddin’s saleable interest in the suit property was never decided satisfactorily. Such question of fact unless decided the appeal cannot be disposed of. 25. In such view of the matter though order of amendment of written statement passed by the court below sustains but the order of remand passed under Order XLI Rule 23A CPC is hereby set aside and consequently the order of the Court below for setting aside the judgment and decree of the Trial court is also hereby set aside and the First Appeal is kept pending before the court below for deciding the appeal on material issue. 26. Accordingly one additional issue is framed: “whether Nasiruddin had any saleable interest in the suit property to execute the deed in favour of plaintiff ?” 27. The case is remanded to trial court under Order XLI Rule 25 of the Code of Civil Procedure to take additional evidence, if required and will return the evidence along with its finding with reasons thereof on the aforesaid issue within a period of six month from this date. Thereafter the court below will decide the appeal on merit. 28. FMA 189 of 1998 thus stands disposed of. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (Dr. AJOY KUMAR MUKHERJEE, J.)