Punjab-Haryana High Court
Mohinder Singh And Others vs Mohinder Kaur And Others on 11 October, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Civil Revision No. 3784 of 2007 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 3784 of 2007 (O&M)
Date of decision: 11.10.2012
Mohinder Singh and others
....Petitioners
Versus
Mohinder Kaur and others
....Respondents
CORAM: HON'BLE MR. JUSTICE A.N. JINDAL
*****
Present: Mr. Pawan Kumar, Senior Advocate,
with Mr. Parikshit Gabba, Advocate,
for the petitioners.
Mr. R.K. Singla, Advocate,
for the respondents.
A.N. JINDAL, J (ORAL)
Having remained pending at the motion stage since the year 2007, for one reason or the other, this petition is seeking its culmination.
This petition has arisen out of the order dated 05.06.2007 (Annexure P-1) passed by the Civil Judge (Junior Division), Phillaur, dismissing the application filed by the plaintiffs-petitioners (hereinafter referred as 'the petitioners') under Order 6 Rule 17 CPC for amendment of the plaint as well as reply/written statement to the counter claim filed by defendant Nos. 2 and 3.
Civil Revision No. 3784 of 2007 (O&M) 2
Petitioners-Chuhar Singh, Mohinder Singh, Sucha Singh and Mohinder Kaur are/were the brothers and sisters respectively and Surjit Kaur, widow of Sadhu Singh, was their mother. The petitioners filed a suit for declaration on 24.04.2000 claiming themselves to be owners in possession, in equal shares, of the land, as fully detailed in the heading of the plaint. They have claimed that the suit property was purchased in the name of their mother Surjit Kaur-defendant No.1 with the joint family funds. However, the said property was transferred in the name of Parveen Kaur and Parvinder Singh, daughter and son of Mohinder Kaur respectively. However, during the pendency of the suit, the plaintiffs moved an application for amendment of the plaint on the ground that the entire land was not recorded in the name of Surjit Kaur, but some part i.e. land measuring 26 Kanals 9 Marlas, was the ownership of Sadhu Singh, about which, they came to know in the month of November, 2004 when they obtained certified copies of the sale deeds dated 07.08.1961 and 29.08.1961 executed by Darshan Singh, Bhajan Kaur and Gurdev Kaur respectively. Thus, in any case, if they are not proved to be the owners of the suit land having purchased in the name of Surjit Kaur, even then they are owners of the suit land having inherited the same from Sadhu Singh and Surjit Kaur, had no right to sell the same. Consequently, they want to add following para No. 5 (d) in the plaint to the following effect:-
"5 (d) That even if plaintiff is not able to prove that the land in dispute was not benami in the name of defendant No.1, even otherwise, the said defendant No.1 was not competent to execute the alleged sale deeds as well as alleged gift deeds with regard to Civil Revision No. 3784 of 2007 (O&M) 3 the land in dispute. It is submitted in this context that defendant No.1 was not the owner of the part of the suit land i.e. 26 Kanals 9 Marlas bearing Rect. No. 53/2/3 (4-16), 9/1 (4-16), 12/2 (2-11), 12/3 (1-18), 18/2 (0-6), 19 (6-18), 22 (3-14), 23/1 (1-0), situated in village Jandiala, Tehsil Phillaur, District Jalandhar. In fact, the said land in dispute was owned by (1) Darshan Singh, 2. Balwant Singh, 3. Bhajan Singh, all sons of Santa Singh son of Kartar Singh, as well as."
In this case, defendants No.2 and 3 had also filed a counter claim, therefore, the petitioners also wanted to make amendment by adding the aforesaid facts at the end of para No.1 of the written reply filed to the counter claim.
Learned counsel for the petitioners has submitted that as the relief, sought for, is only with regard to ownership over the land in dispute, therefore, merely by adding the fact that some property was purchased in the name of their mother Surjit Kaur from joint family funds and some property was owned by their father Sadhu Singh which they have inherited on the death of their father, does not change the nature of the suit.
Defendants-respondents filed reply to the said application, whereby they denied all the allegations and submitted that the proposed amendment would change the nature of whole of the case. It was contended that earlier, the petitioners had submitted that they are owners of the property in dispute, whereas Surjit Kaur is a 'benamidar' and now they want to take a different stand by claiming that they had received some of the property by inheritance from their father. It has been further submitted that the respondents have already disclosed their defence in the written statement, filed before Civil Revision No. 3784 of 2007 (O&M) 4 the trial Court. Thus, the proposed amendment would change the entire nature of the suit. It was further urged that the petitioners have already examined their witnesses and concluded the evidence, therefore, the proposed amendment, if allowed, would seriously prejudice their rights. They have alleged that the application has been filed just to delay the disposal of the suit.
Having heard the rival contentions and gone through the records of the case, it transpires that the trial Court has declined the application merely on the ground that the petitioners want to deviate from the earlier stand, taken by them. Earlier, the petitioners had stated that the suit property was purchased in the name of their mother Surjit Kaur-defendant No.1 from the funds supplied by them and the sale deeds are in their possession. Now they want to say that some of the property was owned by Sadhu Singh, their father, from whom, they have inherited the same. The trial Court had further observed that Mohinder Singh, one of the plaintiffs, while appearing in the witness box as PW-1, had stated that the property was purchased by them in the name of their mother Surjit Kaur by spending money from their own pocket.
Having examined the contentions, as advanced by both the counsel and also the observations made by the trial Court, the basic claim as well as relief sought by the petitioners is that they are owners in possession in equal shares of the land measuring 26 Kanals 9 Marlas as well as the other land and the gift deed and the sale deeds, executed by Surjit Kaur in the name of Parveen Kaur and Parvinder Singh are illegal, null and void and are not binding qua Civil Revision No. 3784 of 2007 (O&M) 5 their rights. This relief, sought for and the cause of action, would remain unchanged even if the proposed amendment is allowed. The proposed amendment is supposed to create difference, in as much as out of the total land claimed by them, the petitioners claim ownership over 26 Kanals 9 Marlas of land by way of inheritance from their father, which devolved upon their father by way of a registered sale deeds dated 07.08.1961 and 29.08.1961, regarding which they are stated to have come to know in the month of November, 2004. The said documents could not have been forged by them and the same cannot be said to be an after thought. It is also well settled that the documents or the question of fact, as proved from the record, could supersede the wrong admissions.
The respondents are seeking denial of the amendment on the ground that earlier the petitioners had stated that they are in possession of the documents and now they want to deviate from the original admissions made by them, whereby they had stated that the suit property was purchased by them in the name of Surjit Kaur with the funds supplied by them.
The aforesaid two statements of the petitioners neither can be said to be false nor can be made basis to deny them the amendment. Wrong admissions could be withdrawn or in any way, explained away by way of amendment. The oral statements cannot supersede the fact which could be proved by documents. Even otherwise, the petitioners, while stating that the documents of sale are with them, may not have stated with regard to the documents regarding the entire property. As soon as the documents with regard Civil Revision No. 3784 of 2007 (O&M) 6 to 26 Kanals 9 Marlas of land came in their hands, they forthwith came to explain by way of amendment in the plaint.
Since the petitioners have claimed themselves to be joint owners by way of the filing the present suit, the aforesaid amendment with regard to insertion of the source of devolvement of rights, would not change the nature of the suit. Similarly, the cause of action would also remain the same. Since, no different rights are being claimed but only amendment is sought with regard to the fact, as to 'how the property has been devolved upon the petitioners as well as Mohinder Kaur, is being explained by way of amendment, therefore, in case the amendment is allowed, the respondents would not feel prejudiced in any manner.
While taking the case from another angle, if the suit property is proved to be the ownership of Sadhu Singh, from where the petitioners received the same by way of inheritance, then the sales made by Surjit Kaur or Mohinder Kaur would be of no consequences. As such, nature of the suit would not change.
As regards, the delay in seeking the amendment, it has been duly explained that they had filed the said application as soon as they came to know about the sale deeds. Even otherwise, the case was fixed for evidence of the petitioners. Therefore, the delay cannot be said to be inordinate, so as to deny this valuable right of the petitioners, particularly the truth which they wanted to bring on the record. The delay could matter only, if the amendment was malafide just to delay the decision of the suit or to thwart the real cause. But, the object of the Rule is that the Court should try the Civil Revision No. 3784 of 2007 (O&M) 7 merits of the case that come before it and it should liberally allow all the bonafide amendments, necessary for determining the real questions of controversy between the parties. The bonafide applications cannot be thrown away just on the ground of delay. The Hon'ble Apex Court while dealing with the object of the amendments in case Rajesh Kumar Aggarwal and others Vs. K.K. Modi & others, 2006 (2) RCR (Civil) 577, observed as under:-
"15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
16. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve theends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
17. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the Civil Revision No. 3784 of 2007 (O&M) 8 prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."
The Hon'ble Apex Court further observed as under:-
"18. ....The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice."
On the point of delay, the Hon'ble Supreme Court in case Andhra Bank Vs. ABN Amro Bank N.V. & others, 2007 (3) RCR (Civil) 585, observed that the delay is no ground for refusal of the prayer for amendment. The relevant observations are reproduced as under:-
"5. We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S. Ganesh, learned senior counsel for the respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court, we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh, appearing for ABN Amro Bank, submits before us that by filing of such an application for amendment of the written statement, which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July 2007. In response to this Mr. Kapadia, learned counsel for the appellant, Civil Revision No. 3784 of 2007 (O&M) 9 submits that in the event the prayer for amendment is allowed by his client undertakes to file the amended written statement by day after tomorrow, i.e. 12th July 2007 before the Special Court. Sine, we are of the view that delay isno ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable."
Recently, the Hon'ble Apex Court in case Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & others, 2010 (1) RCR (Civil) 27, classified the cases where amendment should be allowed and where refused. The Hon'ble Apex Court has laid down the following parameters in this regard:-
"66. The purpose of imposing costs is to:
a) Discourage mala fide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
(d) To send a clear message that the parties have to be careful Civil Revision No. 3784 of 2007 (O&M) 10 while drafting the original pleadings.
FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS"
67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money:
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
70. We can conclude our discussion by observing that while deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
Since, the amendment of the plaint as well as reply to the counter claim is being sought on the basis of the registered documents, which would enable the Court to reach the real questions into controversy and are also essential for just decision of the case, therefore, the trial Court appears to have taken wrong view of the matter while declining the said amendment. The case squarely falls Civil Revision No. 3784 of 2007 (O&M) 11 within the parameters laid down in Revajeetu Builders's case (supra).
Resultantly, the impugned order is rendered as perverse, warranting interference by this Court. However, the delay, if any, could be compensated with costs.
Resultantly, the present petition is allowed; the impugned order is set aside and the petitioners are permitted to amend their plaint as well as reply to the counter claim, subject to payment of Rs.20,000/- as costs.
(A.N. Jindal) 11.10.2012 Judge ajp