Punjab-Haryana High Court
Gurbax Singh vs Mahant Govind Dass Chela Mahanat Ram ... on 5 May, 1999
Equivalent citations: (1999)123PLR272
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The petitioner-plaintiff filed a suit for declaration to the effect that he is a tenant under defendant over the suit land including the residential house attached thereto wherein the rent was Rs. 1,750/-per killa. The aforesaid suit was filed on August 9, 1995. Written Statement thereto was filed by the respondent-defendants on September 21, 1996. Even before any evidence had been led, an application under Order 6, Rule 17, CPC was filed by the petitioner-plaintiff claiming amendment in the plaint filed by him. Through the aforesaid amendment, the petitioner-plaintiff wished to incorporate that the tenancy in respect of the suit land was executed in writing through a Patta dated June 16, 1993.
2. A perusal of the impugned order would show that the learned trial Court accepted the plea of the respondent-defendant and rejected the application filed by the petitioner-plaintiff under Order 6, Rule 17, CPC. Three reasons were indicated for dismissing the amendment application. According to the trial Court, the petitioner-plaintiff in his plaint had indicated that the tenancy was oral. By the amendment sought, an inconsistent plea was being raised to the effect that the tenancy was incorporated in a written Patta, dated June 16, 1993. According to the trial Court the petitioner-plaintiff in the written pleadings had admitted that the tenancy was oral and through the instant amendment the real effort was to withdraw the aforesaid admission of oral tenancy. The last reason for rejecting the aforesaid amendment was that the petitioner-plaintiff through the instant amendment was setting up a new case.
3. I have heard the learned counsel for the petitioner, who vehemently argued that no where in the plaint filed by the petitioner-plaintiff, he had stated that the tenancy was oral. The learned counsel for the petitioner submitted that the findings recorded by the learned trial Court to the effect that in the plaint the tenancy had been described as oral tenancy was incorrect and contrary to the record. It was in these circumstances that the learned counsel for the petitioner-plaintiff read out the plaint. A reading of the plaint shows that the aforesaid conclusion drawn by the learned trial Court was not correct. The pleadings did not indicate that the tenancy between the petitioner-plaintiff and the defendant-respondent was oral. Learned counsel for the respondent has also accepted the aforesaid factual position.
4. In view of the aforesaid, it is obvious that the learned trial Court proceeded to decide the application under Order 6 Rule 17 on the mistaken belief that the plaint expressly indicated that the tenancy between the petitioner-plaintiff and the respondent-defendant was oral.
5. The learned counsel for the petitioner-plaintiff stated that in the plaint, the petitioner-plaintiff had ignored to indicate the nature of the tenancy and that when his mistake was discovered, an application under Order 6, Rule 17, CPC had been filed. It is the case of the learned counsel that no evidence has been recorded in the suit filed by the petitioner-plaintiff till date, and that no prejudice would be caused to the respondent-defendant, if the instant amendment was to be allowed. The learned counsel for the petitioner very fairly concedes that the defendant should be allowed a reasonable compensation.
6. After examining the whole matter in detail and after hearing the learned counsel for the respondent, I am of the considered view that the amendment sought by the petitioner-plaintiff merely seeks to clarify the nature of the tenancy and how the same was executed. By the instant amendment, no admission made in the plaint earlier has been sought to be withdrawn directly or indirectly nor any inconsistent plea has been raised by the plaintiff-petitioner. Further, the petitioner-plaintiff filed an application for amendment at the earliest stage even before the parties had commenced to record their evidence.
7. In the aforesaid view of the matter, I am of the opinion that an error of jurisdiction on the face of the record has been committed by the trial Court calling for interference by this Court. In these circumstances, the order of the civil Court is set aside. The instant petition is allowed and thereby the amendment sought through the application filed by the petitioner-plaintiff under Order 6 Rule 17 is allowed.
8. In the peculiar circumstances of the case, so as to compensate the respondent-defendant, who had to suffer the hardship of engaging counsel to defend the instant petition, the petitioner is directed to pay the respondent-defendant costs quantified at Rs.5,000/-. The aforesaid costs shall be paid to the respondent-defendant before the petitioner-plaintiff leads his evidence before the trial Court.