Punjab-Haryana High Court
Smt. Natho vs Kanwal Singh And Ors. on 26 March, 2003
Equivalent citations: (2003)135PLR181
JUDGMENT G.S. Singhvi, J.
1. This is a petition under Section 115 of the Code of Civil Procedure (for short, the CPC) for setting aside the order dated 17.10.1994 vide which Additional District Judge, Sonepat allowed the application filed by the non-petitioners under Order 6 Rule 17 of the CPC during the pendency of the appeal and granted them leave for amendment of the plaint.
2. For deciding whether or not the impugned order suffers from any jurisdictional infirmity or patent illegality or the learned Additional District Judge acted illegally or with material irregularity in the exercise of jurisdiction vested in him to decide an application under Order 6 Rule 17 of the CPC, it will be useful to notice the relevant facts.
3. Agricultural land comprised in khewat No. 164, khata Nos. 214 to 216, rectangle and killa Nos. 78/67/1, 68/12, 47/10 and 57/19/1 total measuring 16 kanals 19 marlas situated in the revenue estate of village Dodhwa, Tehsil and District Sonepat was jointly owned and possessed by Kanhiya Ram and Dharama Ram sons of Jit Ram to the extent of 4/5th share. The remaining 1/5h share was owned by Smt. Hawni Bai daughter of Jit Ram. Kanhiya Ram is sold his share to Smt. Natho (petitioner herein) vide sale dated 15.7.1987 for a sum of Rs. 36,000/-. Kanwal Singh, Mange, Zile Singh and Nora sons of Baru jointly filed a suit with the prayer that the sale of land in favour of the petitioner may be declared void. They claimed that being sharers of Kanhiya Ram, they had a prior right to purchase the sahre sold by him. In her written statement, the petitioner pleaded that the plaintiffs do not have preferential right of pre-emption. The learned Senior Sub Judge. Sonepat decreed the suit vide Judgment and decree dated 24.7.1993. He held that the plaintiffs/non-petitioners were co-sharers prior to the sale of his share by Kanhiya Ram to Smt. Natho and, therefore, they had preferential right to purchase his share. The petitioner challenged the judgment and decree of the trial Court by filing an appeal.
4. During the pendency of the appeal, an application was filed on behalf of the petitioner for permission to lead additional evidence to prove that Kanhiya Ram and Dharma Ram were co-sharers in the joint holdings of which the suit land was a pan and that Dharma Ram had executed who separate sale deeds in favour of the plaintiffs which were registered at S. Nos. 2655 dated 13.9.1985 and 1345 dated 12.6.1986. Likewise, Kanhiya Ram had executed two separate sale deeds in her favour and the same were entered at S.Nos. 1378 dated 12.6.1986 and 2196 dated 15.7.1987. By an order dated 16.12.1993, the learned Additional District Judge allowed her application subject to payment of costs. Thereafter, her Advocate tendered in evidence certified copy of the order passed by the High Court (Ex/DA), copy of sale deed dated 3.11.1988 (Ex/DB) and certified copy of sale deed dated 12.6.1988 (Ex/DC).
5. After the petitioner had produced additional evidence, the non-petitioners filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint for substitution of the existing para 1 of the plaint by incorporating killa No. 57/12 in place of killa No. 68/12. They put forward the following reasons for seeking leave to amend the plaint:-
"That during the course of arguments, the appellant told that Killa No. 68/12 is wrongly mentioned in the registered sale deed dated 15.7.1987 Ex.P1, whereas this killa No. is not the number of this khewat, nor the vendor was competent to sell this killa No. 68/12 and that correction in the said registered sale deed dated 15.7.1987 has been made by Titama Registry dated 3.11.1988 and this killa No. 68/12 was rectified in the Registry dated 15.7.1987 by killa No. 57/12 and this fact was not within the knowledge of the respondents-plaintiffs before 30.1.1994 and for the first time this rectification by way of said correction in the Registry dated 15.7.1987 i.e. Ex.P.1 through Titama Registry dated 3.11.1988, came to the knowledge of the plaintiffs/ respondents on 31.1.1994."
6. The petitioner contested the application for amendment by contending that the case sought to be set up by the respondents for pre-emption of land comprised in killa No. 57/12 had become time barred. In the reply on her behalf to the application of the non-petitioners, it was averred that at the time of filing of the suit, they were aware of the change effected in registered sale deed dated 15.7.1987 vide supplementary sale deed dated 3.11.1988 and, therefore, they were not entitled to seek amendment after expiry of the period of limitation. It was further averred that the supplementary sale deed had been placed on the file as Exhibit-DB on 16.12.1993, but even thereafter the non-petitioners delayed the filing of application for amendment.
7. The learned Additional District Judge allowed the application filed by the non-petitioners and granted them leave to amend the plaint by observing that the amendment was necessitated because the appellant had gone for a supplementary sale deed in her favour and the plaintiff-respondents were entitled to make necessary correction in the plaint with a view to substantiate their claim for pre-emption.
8. Shri I.S. Balhara, learned counsel for the petitioner assailed the impugned order by arguing that the learned Additional District Judge did not have the jurisdiction to entertain the application for amendment at the appellate stage and, in any case, he could not have granted leave to the non-petitioners to seek relief by way of amendment which had become time barred. He further argued that the learned Additional District Judge committed a material irregularity in the exercise of jurisdiction vested in him to decide the application for amendment, in-as-much as, while granting leave to the non-petitioners to amend the plaint after expiry of the period of limitation he overlooked the fact that even at the time of filing of suit, the plaintiff-respondents were aware of the execution of supplementary sale deed. In support of his arguments, Shri Balhara relied on the decision of this Court in Smt. Gurdip Kaur v. Kehar Singh and Anr., (1971)73 P.L.R. 384: Jarnail Singh v. Prem and Ors. A.I.R. 1984 Punjab and Haryana 336 and Hari Chand v. Mangat Singh and Ors. 1984 Revenue Law Reporter 292.
9. Shri S.C. Sibal, learned Senior Advocate appearing for the non-petitioners argued that the order under challenge does not suffer any jurisdictional infirmity and the learned Additional District Judge did not commit any error by granting leave for amendment of the plaint because the factum of change in the killa number of the property which was subject-matter of sale deed dated 15.7.1987 came to the notice of the plaintiffs only when additional evidence was adduced on behalf of the petitioner. Shri Sibal submitted that correction of killa number in paragraph i of the plaint was necessitated because the supplementary sale deed was produced for the first time during the pendency of appeal. He relied on the decision of this Court in Hukam Chand v. Sham Lal and Ors., 1979 Revenue Law Reporter 335; Jagbir Singh v. Amar Singh, 1985 Revenue Law Reporter 157 and of the Supreme Court in Munshi Ram v. Narsi Ram and Anr., A.I.R. 1983 S.C. 271 and argued that the impugned order does not call for interference by this Court under Section 115 of the CPC.
10. I have thoughtfully considered the respective arguments and gone through the entire record. In my opinion, the impugned order does not suffer from any jurisdictional infirmity or material irregularity in the exercise of jurisdiction as contemplated by Section 115 of the CPC and the revision petition merits dismissal, more so, because no failure of justice has been occasioned by grant of leave to the non-petitioners to amend the plaint in the light of the additional evidence produced on behalf of the petitioner.
11. A perusal of the sale deed dated 15.7.1987 shows that killa number of the property purchased by Smt. Natho from Kanhiya Ram son of Jit Ram was shown as 68/12. In the supplementary sale deed dated 3.11.1988 which was brought on record in pursuance of order dated 16.12.1993 passed by the learned Additional District Judge on the petitioner's application for additional evidence, the killa number was changed to 57/12 because as per the vendor, the killa number given in the original deed i.e., 68/12 was not correct. There is noting on the record to show that the factum of change of killa number mentioned in the original sale deed was in the knowledge of the non-petitioners at the time of filing of the suit or till the decision of the suit by the trial Court or at any time before supplementary sale deed dated 3.11.1988 was brought on record at the appellate stage. Therefore, the petitioner's plea that the non-petitioners were aware of the change recorded in the killa number mentioned in the original sale deed cannot be accepted for up-setting the well-reasoned order passed by the learned Additional District Judge. In my opinion, the amendment sought by the non-petitioners for correction of kill number in paragraph 1 of the plaint was necessitated in view of the additional evidence produced by the petitioner during the pendency of the appeal in the form of supplementary sale deed dated 3.11.1988 and such the amendment cannot be treated as barred by time.
12. I am further of the view that the learned Additional District Judge correctly exercised jurisdiction vested in him to decide the application filed by the non-petitioners under Order 6 Rule 17 of the CPC and the impugned order does not suffer from any illegality or material irregularity in the exercise of jurisdiction vested in the learned Appellate Court. Rather, by granting permission to the non-petitioners to amend the plaint in the light of the additional evidence produced on behalf of the petitioner, the learned Additional District Judge has, done substantial justice and I do not find any justification to interfere with the impugned order, more-so because the same has not caused any prejudice to her.
13. In Munshi Ram v. Narsi Ram (supra), the Supreme Court reversed the order passed by this Court declining the request of the appellant for impleading additional defendants in the suit. The facts of that case were that the appellant filed a suit for possession of a piece of land in exercise of his right of pre-emption against respondents 1 and 2 alleging that they had purchased the land from his father under a registered sale deed dated 16.5.1977 in total disregard of his right of pre-emption. It was stated in the plaint that the cause of action rose on 16.5.1977 and hence, the suit filed on 29.1.1978 was in time. Certified copy of the sale deed was also filed alongwith the plaint. In the certified copy of sale deed there was mention of only respondents 1 and 2 as vendees. In the written reply filed on 17.5.1978 one of the pleas was that all the vendees were not impleaded and hence the suit being for partial pre-emption was liable to be dismissed. On 14.6.1978 the Court proceeded to frame issues. In that course when the original sale deed was read it transpired that one M was also a vendee along with respondents 1 and 2. On the next day itself appellant filed an application to implead and prayed for amendment of plaint stating 16.6.1977 also as the date of cause of action on which day according to him the possession of land was delivered to the vendees. The amendment was sought to save the suit from bar of limitation prescribed by Article 97 of Limitation Act. The suit and application were dismissed as also the first appeal and the second appeal before the High Court. The Supreme Court allowed the appeal and held that the omission to implead M as defendant was due to a mistake and hence, proviso to Section 21(1) of the Limitation Act would apply and the suit would be deemed to have been filed against M within the period of limitation.
14. In Suraj Parkash Bhasin v. Smt. Raj Rani Bhasin and Ors. 1981(3) S.C.C. 652, the Supreme Court held as under:-
"The liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject matter of the suit should not be changed by amendment."
15. In B.N. Narayana Pillai v. Parameshwaran Pillai and Anr. 2000(1) S.C.C. 712, the Supreme Court considered the scope of Order 6 Rule 17 of the CPC and observed as under:-
"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayer should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
16. In Estralla Rubber v. Dass Estate (P) Ltd., 2001(8) S.C.C. 97, the Supreme Court held that the amendment of pleadings under Order 6 Rule 17 of the CPC is to be allowed if such an amendment is required for proper and effective adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions, such as allowing the amendment should not result injustice to the other side or the party seeking amendment may not be allowed to withdraw admission made by it conferring certain rights on the other side. It was further held that in certain situations, a time barred claim may not be allowed to be raised by an amendment. Their lordships also ruled that the mere delay in making of the application is not enough to refuse amendment.
17. In Om Parkash Gupta v. Ranbir B. Goyal, (2002-1)130 P.L.R. 799 (S.C.), the Supreme Court held:-
"A subsequent event may be one purely of law on founded of facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consist of facts not beyond pale of controversy either as to their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining the real questions in controversy between the parties."
18. In Prem Bakshi and Ors. v. Dharam Dev and Ors., (2002-1)130 P.L.R. 558 (S.C.). the Supreme Court held;-
"It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. The converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all, amendments of the pleadings would not amount to decisions on the issue involved. They would only serve advance notice to the other side as to the plea, which a party might take up. Therefore, it is not possible to envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party."
19. In Hukam Chand v. Sham Lal, (supra) a learned Single Judge held that order permitting amendment in the first appeal for substitution of the correct killa number instead of wrongly mentioned cannot be interfered by the High Court under Section 115 of the CPC.
20. In view of the law laid down by the Supreme Court and this Court in the aforementioned cases, I hold that the learned Additional District Judge, Sonepat had the jurisdiction to allow amendment of the plaint and he did not commit any material irregularity in the exercise of that jurisdiction and further that the impugned order has not occasioned failure of justice.
21. In Smt. Gurdip Kaur v. Kehar Singh and Ors. (supra) a learned Single Judge held that no amendment is to be allowed if its effect is to take away a valuable right that has accrued to the opposite party. The facts of that case were that vide sale deed dated 25.5.1964, Shingara Singh sold 50 kanals and 16 marlas of land situated in village Pakhana alongwith all rights appurtenant thereto and a kutcha house to Smt. Gurdip Kaur for a sum of Rs. 7620/-. His son-Kehar Singh filed a suit for pre-emption on 31.5.1965. In the plaint, no reference was made to Kutcha house which was included in the sale deed. In her written statement, Smt. Gurdip Kaur pleaded that the suit was liable to be dismissed because no prayer had been made in respect of Kutcha house and partial preemption cannot be granted. In the course of the trial, the plaintiff applied for amendment for inclusion of prayer in respect of kutcha house. The trial judge dismissed the application for amendment primarily on the ground that it was barred by time. The plaintiff did not challenge that order by way of revision. The suit was ultimately dismissed on the ground that relief of partial pre-emption cannot be granted. During the pendency of the appeal filed by him, the plaintiff again applied for amendment. The Additional District Judge allowed the application and remanded the case to the trial Court. The learned Single Judge accepted the appeal filed by the vendee and held that the amendment cannot be allowed because it had become time barred.
22. In Jarnail Singh v. Prem and Ors. (supra) another learned Judge held as under;-
"Where the suit for pre-emption reached the stage of recording the plaintiffs evidence in rebuttal and arguments, an application for amendment of the plaint was filed on a date when a suit for pre-emption on this basis would have stood barred by time it was held that the amendment could not be allowed. The application for amendment having been filed beyond the period of limitation, the right which had accrued to the defendants-vendees to defeat the plaintiffs claim for pre-emption could not be allowed to be denied in this manner. Further, the order of the court allowing the amendment could be set aside in revision. Failure of justice and irreparable injury to the defendants-vendees would manifestly be there in so far as the defendants-vendees were concerned."
23. In Hari Chand v. Mangal Singh (supra), an application for amendment was rejected on the ground that it was not bona fide.
24. In my opinion, none of the aforementioned three decisions has got any bearing on the facts of the present case and the proposition of law laid down therein cannot be relied upon for setting aside the impugned order which, as mentioned above, does not suffer from any jurisdictional infirmity or material irregularity in the exercise of jurisdiction vested in the learned Additional District Judge.
25. In the result, the revision petition is dismissed.