Punjab-Haryana High Court
Harchand Kaur vs Harinder Singh And Ors. on 21 January, 1994
Equivalent citations: (1994)107PLR129
JUDGMENT G.C. Garg, J.
1. This revision is directed against the order dated March 27, 1991 whereby an application filed by the plaintiff-petitioner seeking amendment of the plaint has been dismissed by the trial Court.
2. In order to understand the controversy, it is necessary to notice few facts :-
Petitioner's husband Jagmer Singh had a son, namely, Baldev Singh from his firstwife. After her death, he married again and was blessed with a son from the second wife, whose name is Gurkirat Singh. The second wife also died. Thereafter, Jagmer Singh married Harchand Kaur, the present petitioner. Harchand Kaur executed a power of attorney in favour of Baldev Singh and Gurkirat Singh sons of Jagmer Singh, born from latter's first wife and (he second wife respectively. Harinder Singh son of Baldev Singh and Harpal Singh son of Gurkirat Singh filed a suit on January 15, 1978 against Harchand Kaur. The latter was sued through her attorneys, Baldev Sigh and Gurkirat Singh. The attorneys admitted the claim of Harjinder Singh and Harpal Singh wherein it had been pleaded that the parties constituted a Hindu undivided family and on dissolution thereof, property fell to their shares. Having regard to the stand taken by the attorneys of Harchand Kaur, the suit filed by Haridner Sigh and Harpal Singh was decreed.
3. Harchand Kaur, the present petitioner having come to know of the fraud played on her by her attorneys filed a suit on March 25, 1989, for possession alleging that the decree dated June 15, 1978 passed in civil suit No. 93 of April 1, 1978, titled "Harinder Singh and another v. Harchand Kaur' was null and void and not binding on her rights, the same having been obtained by playing a fraud and on the basis of misrepresentation of facts. In the suit filed by the petitioner an application under Order 6 Rule 17 for amendment of the plaint was filed by her on November 19, 1990. One of the amendments sought was that the plaintiff was the owner of the suit land, the same having been purchased by her and the other amendment sought was that the plaintiffs in the earlier suit, namely, Harinder Singh and Harpal Singh were minors at the time of institution of the suit and thus the suit could not have been filed by them personally, without their next friend and, therefore, no decree could be passed in their favour. It was further stated by her that there was no question of any family settlement/partition amongst the parties, as the property in question was neither joint Hindu family property nor the parties ever constituted a Hindu undivided family. She further stated that she was the absolute owner of the suit properly and that there could be no Hindu undivided family property between the male and female members. The said application was opposed by the defendant-respondents, who are none else but the plaintiffs of the earlier suit. As noticed above, the application for amendment of plaint was dismissed.
4. Learned counsel for the petitioner strenuously submitted that the earlier decree dated June 15, 1978 was based on fraud and the allegations made in the suit that the property was Hindu undivided family property was, wrong and the same is required to be explained by alleging that it was the self acquired property of the plaintiff-petitioner. The counsel submitted that these allegations could not be made when the suit was filed and therefore, it necessitated the filing of an application seeking amendment of the plaint. It was further submitted by the learned counsel that the learned trial Court fell into an error in dismissing the application. The application should have been allowed as the Law relating to amendment of pleadings is very liberal and that even otherwise, the suit was at the initial stage, no evidence having yet been led. In support of his submission, the learned counsel placed reliance on Smt. Tarawati v. Sees Ram, (1966)68 P.L.R. 406, Daljit Singh v. Tulla, 1965 C.L.J. 867 and Kehar Singh v. Balraj Singh, (1991-2) 100 P.L.R. 616.
5. 1 have considered the submission made by the learned counsel and gone through the judgments cited before me. None of the judgments referred to above has any application to the facts of the present case and thus do not help the petitioner in any manner. The main allegation in the present suit is that the decree in question was the outcome of a fraud having been played on the petitioner. If on the allegations made in the present suit, the petitioner succeeds in proving that she never executed a power of attorney in favour of Baldev Singh and/or Gurkirat Singh and that they or any of them obtained power of attorney from her by playing a fraud on her or that they or any of them suffered a decree on her behalf in favour Harinder Singh and Harpal Singh by playing a fraud on her, then the decree passed in the earlier suit will have to be set aside by decreeing the present suit and then it will be open to the petitioner to raise all pleas that may be available to her in law by filing a written statement in the suit filed by them. The amendment sought at present by the petitioner is neither necessary nor relevant for the disposal of the present suit, for, the allegations, whether the property in question was wrongly stated to be Hindu undivided family property in the previous suit or that the plaintiffs in the earlier suit were minor or not, are not necessary to be gone into in the present suit as the same will touch the merits of the earlier suit- Even if these allegations are proved in the absence of proof of fraud allegedly having been played on the petitioner either in getting the power of attorney from her or by suffering a decree in the absence of a power of attorney, the decree is not liable to be set aside. Thus in my view, the allegations now sought to be introduced in the plaint by way of amendment are in no way necessary to be incorporated in the plaint for granting relief to the petitioner. Even otherwise, the plca that the plaintiffs in the earlier suits, were minors and they had filed the suit without their next friends cannot be gone into in this suit as it will change the complex of the suit and jeopardise the interest of the defendants. The proposed amendment, if allowed, would change the nature of the suit as the plaintiff instead of filing a fresh suit on that ground wants to seek amendment in the present suit, which cannot be permitted. The present suit, as noticed above, is based on the grounds that the decree challenged herein was the outcome of fraud having been played on the petitioner by her attorneys. Noting would survive if the petitioner succeeds in proving that there was a validly executed power of attorney, executed by her in favour of her attorney/attorneys or that (he power of attorney was not obtained by playing a fraud, on her. Further, the proposed amendment cannot be allowed merely on the ground that the suit is at the initial stage and that no evidence has been recorded so far, without having regard to the nature of the amendment. It is true that the law relating to amendment of pleadings is liberal and the amendment can be allowed even at the appellate stage yet the pleas sought to be raised by way of amendment of plaint or the written statement which are contrary to the earlier pleas or are not necessary for resolving the controversy between the parties, cannot be permitted to be raised.
6. For what has been observed above, the revision fails and is hereby dismissed. There shall, however, be no order as to costs.