Punjab-Haryana High Court
Balwant Singh Etc. vs Harbans Singh Etc. on 10 February, 1999
Equivalent citations: (1999)122PLR517
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This revision is directed against the order dated 28.9.1996 passed by the learned Additional Civil Judge (Senior Division), Patti. Vide the impugned order, the learned Judge allowed the application filed by the applicants-plaintiffs under Order 1 Rule 10, Order 6 Rule 17 of the Code of Civil Procedure.
2. A suit for declaration was filed by the plaintiffs to the effect that they are the owners in possession to the extent of 7/90 share of land in dispute alongwith other defendants at Village Barwala, Tehsil Patti, Distt. Amritsar, 1/2 share alongwith other defendants as per the shares stated in the plaint of the land in dispute situated at Village Khamba, Distt. Ferozepur and similarly to the extent of 1/5 share of land and plot mentioned in the plaint situated at District Rampur (UP) and East Patel Nagar, New Delhi, respectively alongwith other defendants. The suit was being contested by the defendants. During the pendency of the suit, the plaintiffs filed an application praying for amendment of the plaint and for impleading Balwinder Singh, Narinder Singh and Ranjit Kaur as parties in the array of defendants to the suit. The reason stated for filing of such application was that after filing of the suit the applicants-plaintiffs have come to know that the defendants are relying upon a Will allegedly executed by Kishan Singh in their favour. As such it has become necessary for the applicants to challenge the execution and validity of the Will because the Will is result of a fraud, misrepresentation and undue influence. Resultantly the applicants wish to amend the plaint in its title, in paragraphs No. 2 and 5 of the plaint to add the above narrated facts and to get the said defendants impleaded to the suit. The application was contested and the learned trial court vide the impugned judgment allowed the said application subject to payment of costs. This has given rise to the present revision.
3. It is contended by the learned counsel for the petitioners that the learned trial Court has committed an illegality and material irregularity by allowing the applications in question. It is further contended that on the one hand the applicants had admitted that the properties are joint properties, therefore, the suit could not include the self acquired properties of Kishan Singh and on the other hand the cause of action was a different and distinct one. Learned Counsel for the petitioners has relied upon the judgment of this Court in the case of Ishar and Ors. v. Sudesh Kumar and Anr., (1973)75 P.L.R. 323, to argue that no new case can be permitted to be introduced by way of amendment and he also relied upon the judgment of this court in the case of Krishan Lal v. Sudesh Kumari, (1998-1)118 P.L.R. 514, to contend that the defendants No. 5 to 7 could not be impleaded as parties to the suit.
4. From the above narrated facts, it is clear that in all the properties specified in the plaint the parties are at issue with regard to the nature of these properties and right of inheritance thereto. The learned trial Court has to determine all the questions arising therefrom. The parties are at issue even in regard to the extent of their share in the respective properties. It is on the basis of the facts disclosed by the defendants that plaintiffs have come to know about the Will or in other words, the controversy surrounding the Will in relation to the property in question is already a subject matter of the suit. The plaintiffs cannot be compelled by the Court to enter into multiplicity of the litigation when the said question can be completely gone into and determined by the Court of competent jurisdiction in the present proceedings. The parties sought to be impleaded are obviously necessary parties to the proceedings because they claim interest in the said I properties on the basis of the Will. In the original plaint, defendants No. 5 to 7 had obviously not been impleaded. Thus, according to the plaintiffs they have no right or title in the properties in question. Subsequent knowledge of some facts, which are material for determination of controversies before the Court, could always be allowed to be added by way of amendment, if such an application was otherwise bonafide.
5. The learned trial Court, while allowing the application, held as under:-
"If the suit is disposed of without taking the properties left by Kishan Singh in other places, it will be futile exercise as the rights of the parties would not be completely determined. Moreover, in the present case, defendants No. l and 2 alleged that the properties mentioned in the Will have been given by Kishan Singh to Balwinder Singh and Narinder Singh, both sons of Sajan Singh (defendant No. 2). So, if the plaintiffs would not challenge this Will, then their rights in respect of the property even left at village Barwala by Kishan Singh cannot be determined without impleading Balwinder Singh, Narinder Singh and Ranjit Kaur."
6. Once the Court comes to the conclusion that presence of the parties would be necessary for complete determination of the controversy in issue, other formal objections with regard to maintainability of such an application would obviously stand diluted to a great extent.
7. Lastly, the learned counsel for the petitioners relied upon the judgment of Hon'ble the Supreme Court of India in the case of Kondiram Bhiku Kirdat v. Krishna Bhiku Kirdat, A.I.R. 1995 page 297, to contend that once severance of joint property is proved on record, the properties acquired by the brothers after severance cannot be clubbed into joint family properties. It must be noticed at the very outset that the judgment of Hon'ble Supreme Court of India does not relate to an amendment of the plaint during the pendency of the suit. In that case rights of the parties including the nature of the property had been decided by the Court of competent jurisdiction upon passing the decree. The unsuccessful defendant then had moved for inclusion of the properties which were stated to be covered under severance by the decree of the Court. In other words, the Court of competent jurisdiction had already decided as to the nature of the properties and extent of interest of the parties therein. In the present case, the Court still has to decide the suit and according to the plaintiffs all the properties continue to be joint and there is no severance of the joint properties. In any case, this question has still to be gone into. The parties have to be afforded opportunities to lead evidence and thereafter the Court is to decide the merits of the case. At this stage, this Court is not concerned with the merits of demerits of the proposed amendment as that has to be decided at the appropriate stage by the learned trial Court. The Court has to see whether the amendment is relevant and is necessary for determining the issues arising in the suit.
8. I am unable to see any reason which could support the contention of the counsel for the non applicant that application for amendment is not bona fide. The plaintiffs normally would not like to delay their own suit. The necessity to amend the suit has arisen as a result of stand taken by the defendants themselves. In these circumstances, I am unable to see any error of jurisdiction in the judgment of the learned trial Court which would justify interference by this Court in exercise of its revisional jurisdiction.
9. Consequently, this revision petition is dismissed. However, the order dated 28.9.1996 passed by the learned trial Court is hereby modified limited to the ex tent of enhancing the costs imposed by the learned trial Court. The respondents herein shall pay a sum of Rs. 500/- instead of Rs. 60/- as costs. Parties are left to bear their own costs in this revision petition.