Punjab-Haryana High Court
Moman vs Sona Devi & Ors on 31 October, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.6210 of 2014 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.6210 of 2014
Date of decision: 31.10.2014
Moman
....Petitioner
Versus
Sona Devi and others ...Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Aman Pal, Advocate and
Mr. Vikram Jeet Singh, Advocate for the petitioner.
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G.S.Sandhawalia J.(Oral)
1. Challenge in the present revision petition filed under Article 227 of the Constitution of India by the petitioner/plaintiff is to the order dated 28.8.2014 (Annexure P/5) passed by the Addl. District Judge, Kurukshetra whereby the application filed by the petitioner/plaintiff under Order 6 Rule 17 read with Section 151 CPC for amendment of plaint has been dismissed.
2. The reasoning given by the Lower Appellate Court is that the application for amendment should have been filed before the trial Court and the case will be reopened de-novo and there is no exercise of due diligence earlier. It would further amount to undoing the findings given by the trial Court. Through the application under Order 6 Rule 17 CPC filed before the Lower Appellate Court, the plaintiff has now sought to challenge the order dated 27.2.1981 which was passed by the Special Collector, Kurukshetra and the sale deed dated 5.5.2008 and the mutation no.325 and order dated 4.1.1984 and the subsequent revenue record.
3. A perusal of the paper-book would go on to show that in the suit for permanent injunction, it was alleged that the petitioner/plaintiff was owner in possession of the land measuring 2 kanals 2 marlas and his possession was PRADEEP KUMAR ARORA 2014.11.05 11:55 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.6210 of 2014 -2- **** being interfered with. He had alleged that an ejectment order dated 22.6.1978 was passed in collusion with the Gram Panchayat and the defendant no.5 Jasmer Singh had also filed a petition under Section 13-B of the Punjab Village Common Land Act, 1961 (hereinafter referred to as "the Act") and got an order regarding ownership on the ground that he was in possession before 26.1.1950. The mutation had been entered in his favour on 4.1.1984 and on that basis he had executed a sale deed dated 5.5.2008 in favour of defendant no.1 and he was not competent to sell any part or portion of the said land. The suit was contested by defendants no.1 to 4 and it was pleaded that ejectment order dated 22.6.1978 had already been passed against the plaintiff. Defendant no.5 had been declared owner in possession and the said order was not liable to be challenged before the Civil Court at this belated stage. The jurisdiction of the Civil Court was also challenged. The trial Court after examining the evidence on record came to the conclusion that there is an ejectment order in favour of defendant no.5 and the suit for declaration was not maintainable. Defendants no.1 to 4 had purchased the property in question and they were claiming their ownership on the basis of title and dismissed the suit on 17.2.2014 (Annexure P/2). Resultantly the application under Order 6 Rule 17 CPC came to be filed before the Lower Appellate Court seeking amendment which has now been rejected. The application was opposed on the ground that order dated 27.2.1981 and 4.1.1984 were in the knowledge of the plaintiff and the Civil Court would have no jurisdiction to try the suit. Limitation was also pleaded and resultantly the application was opposed and the defendants were successful before the Lower Appellate Court.
4. Counsel for the petitioner has vehemently placed on reliance upon the judgment of the Apex Court in Abdul Rehman and another Vs. Mohd. Ruldu and others (2012) 11 SCC 341 and Prithi Pal Singh and another Vs. PRADEEP KUMAR ARORA 2014.11.05 11:55 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.6210 of 2014 -3- **** Amrik Singh and others (2013) 9 SCC 576 to submit that the amendment can be allowed at any stage for appropriate decision of the case and the Court should try to determine real controversy in issue between the parties. Accordingly, it is submitted that the order of the Lower Appellate Court is not justified which failed to exercise jurisdiction vested in it by law.
6. After hearing the counsel for the petitioners, this Court is of the opinion that there is no justification in contention of the petitioner/plaintiff. It is settled principle that firstly amendment of pleadings is only to be allowed before the trial commences. In case there has to be deviation of rules of the above said mandatory provisions of Order 6 Rule 17 CPC then due diligence has to be shown. The petitioner herein was put at guard in the written statement which was filed initially in the suit itself and objection was taken regarding the maintainability of the suit which was only for permanent injunction and a declaration had not been claimed. By virtue if not filing an amendment application the petitioner took a risk and got a finding against him. The trial Court has decided the issue of maintainability against the petitioner. Now in appeal by virtue of amendment a benefit which has accrued to the other side cannot be allowed to be taken away by resorting to the provisions of Order 6 Rule 17 CPC in the absence of any due diligence as it causes serious prejudice to the respondents.
7. The Apex Court in Ajendraprasadji N. Pande & another Vs. Swami Keshavprakeshdasji N. & others (2006) 12 SCC 1 held that due diligence is to be pleaded where issues have been framed and no amendment is to be allowed once the trial has commences. Relevant observations read as under:-
52. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the PRADEEP KUMAR ARORA 2014.11.05 11:55 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.6210 of 2014 -4- **** amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.
53. An argument was advanced by Mr. Parasaran that affidavit filed under Order 18 Rule 4 constitutes Examination- in-Chief. The marginal note of order 18 rule 4 reads recording of evidence. The submission is that after the amendments made in 1999 and 2002 filing of an affidavit which is treated as examination in chief falls within the amendment of phrase recording of evidence.
54. It is submitted that the date of settlement of issues is the date of commencement of trial. [Kailash vs. Nankhu & Ors. (supra)] Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination in chief as date of commencement of trial, the matter will fall under proviso to order 6 Rule 17 CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial.
We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants).
55. The judgment of the High Court recording concession by counsel for the defendant reads thus:
"22. However, when one examines the facts of the case, and applies that the conduct of the defendants goes to show that PRADEEP KUMAR ARORA the exercise, namely, filing of application Exh. 95, is directly in 2014.11.05 11:55 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.6210 of 2014 -5- **** conflict with the object of the amendment, i.e. to adopt a dilatory tactic. It is admitted by learned senior Advocate appearing on behalf of the defendants that all the issues raised by way of proposed amendment in the written statement were taken before this Court in the Appeal from Order filed by the present defendant in the Civil Appeal filed before the Apex Court, in the Appeal. From Order in the second round before this Court and again in a special leave petition filed before the Apex Court in the second round. Hence the defendants can not plead absence of knowledge after exercise of due diligence. If this be the position the approach adopted by the trial Court can not be stated to suffer from any infirmity so as to call for intervention at the hands of this Court in a petition under Article 227 of the Constitution of India."
56. In the instant case, the appeal was filed in the second round on 09.10.2002 as could be seen from the dates and events mentioned in the counter affidavit. Special Leave Petition in this Court was filed on 07.07.2004. Additional written statement has been filed on 24.11.2005. Delay in filing the additional written statement from 09.10.2002 to 24.11.2005. From 09.10.2002, the matters sought to be introduced by defendant by way of additional written statement was known to defendant/appellant. The application in respect of additional written statement does not make an unequivocal averment as to due diligence. The averment only reads as follows:-
"Under the circumstances, the facts which were submitted in the said Appeal from Order before the High Court and the facts which are now being submitted in the present application could not be submitted before this Court inspite of utmost care taken by the defendants."
57. The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier PRADEEP KUMAR ARORA 2014.11.05 11:55 in respect of due diligence. As held by this Court in Kailash vs. I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.6210 of 2014 -6- **** Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
8. In view of the above principles which have been delineated by the Apex Court and keeping in mind observations also made in Revajeetu Builders & Developers Vs. Narayanaswamy & sons & others 2009 (10) SCC 84 wherein it has been held that the Court has to keep in mind whether the application is bonafide or malafide and the Court should decline amendment if the claim is barred by limitation. In the present case, the challenge is now to the findings regarding ownership of defendant no.5 which would be barred as the Civil Court would have no jurisdiction under the 1961 Act. Even otherwise the challenge to the said order dated 27.2.1981 would now be hit by issue of limitation also. In such circumstances, this Court is of the opinion that the application for amendment at the appellate stage was not justified.
8. Accordingly, the present revision petition is dismissed being bereft of merit.
31.10.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.11.05 11:55
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh