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Himachal Pradesh High Court

Rakesh Chand vs Rajinder Kumar on 5 December, 2019

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                          .

                                            CMPMO No.500 of 2019
                                            Decided on: 05.12.2019





    Rakesh Chand                                                      ....Petitioner.
                          Versus
    Rajinder Kumar                                                    ...Respondent.

    Coram

    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

    Whether approved for reporting?1 Yes

    For the petitioners               :     Mr. Ajay Chandel, Advocate.

    For the respondent                :     Mr. Devender Kumar, Advocate.



    Ajay Mohan Goel, Judge (Oral)

By way of this petition, petitioner/ defendant has challenged the order passed by the Court of learned Senior Civil Judge, Court No.1, Sarkaghat, District Mandi, H.P., in C.M.A. No.020504001942010, under Order 6, Rule 17 of the Code of Civil Procedure Code, in Civil Suit No.743 of 2013, titled as Rajinder Kumar Versus Prakash Chand, vide which 1 Whether reporters of the local papers may be allowed to see the judgment?

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an application filed by the respondent herein who is the plaintiff before the learned trial Court, for amendment of the .

plaint, has been allowed.

2. Brief facts necessary for the adjudication of the present petition are that respondent/ plaintiff has filed a suit against the present petitioner for declaration, praying for the following relief:­ "It is, therefore, respectfully prayed that keeping in view the submissions made above, a decree of declaration declaring the gift, exchange, settlement deed null & void and not operative on the rights of the plaintiff just these documents are the outcome of connivance with the defendant and fraud and subsequent mutation also be adjudged wrong & illegal and not binding upon the rights of the plaintiff as the plaintiff and the defendant are entitled to succeed as per Tehrir and the same is binding upon them being signatory of the same being the property is joint Hindu and ancestral one and in case the defendant succeed in dispossessing the plaintiff forcibly from the suit land then a decree for joint possession be passed or any other relief which Hon'ble Court deems fit on the facts and circumstances of the case may kindly be also passed in favour of the plaintiff and against the defendant in the interest of justice and justice be done ".

3. The suit was instituted somewhere in the year 2013. At the stage of arguments of the suit, an application was filed under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, for amendment of the of the pleadings of ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 3 the plaint. It was mentioned in the said application that plaintiff intended to incorporate para 4 (a) in the plaint as the .

same was necessary for proper adjudication of the suit. It was also mentioned in the same that the amendment sought would not change the nature of the suit as the proposed amendment was already clarificatory in nature.

4. The application was opposed by the petitioner herein inter alia on the ground that the same was being filed at a belated stage without there being any merit in it. It was further mentioned in the reply that in the garb of amendment, the plaintiff was trying to fill up the lacunaes which were there in the suit and plaintiff could not be permitted to do same by way of amendment in the plaint. It was also mentioned in the preliminary submissions so made in the reply that plaintiff had not pleaded any due­diligence in the application.

5. Learned trial Court allowed the application filed by the plaintiff under Order 6, Rule 17 of the Code of Civil Procedure by holding that the proposed amendment would ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 4 not change the nature of the suit and would rather help the Court to reach at a just conclusion, as proposed facts would .

clarify the matter in dispute. Thereafter, learned trial Court went on to hold that though the application was filed at the fag end of the case and there was inordinate delay in moving the same, however, it was settled law that rights of the parties are to be determined on merits and not on technicalities. On these grounds, learned trial Court allowed the application by awarding cost of ₹1,500/­ to the present petitioner.

6. Feeling aggrieved, petitioner/defendant has filed the present petition.

7. I have heard learned counsel for the parties and I have also gone through the impugned order as well as other documents appended with the petition.

8. Order 6, Rule 17 of the Code of Civil Procedure permits amendment of pleadings in such a manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties by the Court at any stage of the proceedings. However, ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 5 proviso to the same categorically lays down that no application for amendment shall be allowed after the trial has .

commenced unless the Court comes to the conclusion that in­ spite of due­diligence the parties could not have raised the matter before commencement of the trial.

9. As, I have already mentioned hereinabove, the suit was filed by the plaintiff before the learned trial Court in the year 2013. It was not the case of the plaintiff that the amendment which was intended to be incorporated in the plaint pertained to those facts or those causes, which came into existence after the filing of the Civil Suit. The proposed amendment which the plaintiff intended to introduce in the plaint is being re­produced hereinbelow:­ " That on dated 28.12.2003, a 'Tehrir­Allehdgi' (Family Settlement) took place in between the plaintiff and the defendant and their predecessor­in­interest. At the time when this 'Tehrir­Allehdgi' were executed it was agreed that one half share of the land is allotted to the plaintiff and one half share is allotted to the defendant out of the khasra Nos.1306, 1307, 1308 & 1310. The defendant on 07.03.2007 violated the terms & conditions of the aforesaid 'Tehrir­Allehdgi' and got mutated vide mutation No.768, dated 07.03.2007 one half share of the aforesaid khasra Nos. of the plaintiff in his name by way of 'Tamlik­Nama' dated 06.03.2007 and same be adjudged wrong, illegal and not binding on the rights of ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 6 the plaintiff. The defendant did not settle the accounts and nothing was paid to the plaintiff as per the terms & conditions of the 'Tehrir­Allehdgi'. The defendant also did .

not comply the terms & conditions as mentioned in the para No.3 of the 'Tehrir­Allehdgi' as the defendant has agreed to raise construction over the portion allotted to the plaintiff which was vacant at the time of 'Tehrir­ Allehdgi' and over a part of khasra No.886. The defendant has got constructed portion allotted to him in the 'Tehrir­Allehdgi'. The predecessor­in­interest of the plaintiff and defendant died on 07.08.2009 and the movable & immovable property retained by him was to be allotted to the plaintiff and the defendant in equal share which has not been done as per 'Tehrir­Allehdgi' by the defendant".

10. A bare perusal thereof demonstrates that the events mentioned therein are all which happened much before the filing of the suit. A perusal of the application further demonstrates that there is nothing mentioned in the application as to why despite due­diligence these averments could either not be incorporated in the plaint at the time of the filing of the suit or any time soon thereafter. In fact, in this regard the application is as cryptic and as vague as it could be.

11. Learned trial Court while allowing the application filed by the plaintiff has committed great irregularity by not appreciating at all the effect of the proviso added to Order 6, ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 7 Rule 17 of the Code of Civil Procedure Code. There is neither any discussion nor any findings returned by the learned trial .

Court that, despite due­diligence the proposed amendment could not have been incorporated by the plaintiff in the suit either at the time of filing of the plaint or within some reasonable time thereafter. This Court concurs with the submissions so made by learned counsel for the petitioner that filing of the application at a belated stage was nothing but an abuse of the process of law and intent of the plaintiff was both to delay the adjudication of the suit as also to fill up the lacunae in the same.

12. The contention of learned counsel for the respondent that the order passed by the learned trial Court was fair and just as the proposed amendment was only clarificatory in nature, is without any merit. This, I say for the reason that there are pleadings which now stand introduced by way of the proposed amendment which were not contained in the original plaint. In the garb of 'clarification' a party ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 8 cannot be permitted to fill up the lacunae by allowing it to amend its pleadings and introduced facts not earlier pleaded.

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13. At this stage, I would also refer following judgments relied upon by learned counsel for the respondent of Hon'ble Supreme Court, which laid down the principles to be followed by the Court while dealing with the applications under Order 6, Rule 17 of the Code of Civil Procedure Code:­ (2009) 10 SCC 84, titled as Revajeetu Builders and Developers Versus Narayanaswamy and Sons and Others ; (2017) 8 SCC 567 titled as State of Bihar and others Versus Modern Tent House and another ; (2017) 5 SCC 212 titled as Chakreshwari Construction Private Limited Versus Manohar Lal.

14. These guidelines which are illustrative in nature and not exhaustive, reads as under:­ " (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or .

fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application".

15. While respectfully concurring with the Guidelines which have been so laid down by Hon'ble Supreme Court in the above said judgments, in my considered view, these judgments are of no assistance to the respondent in the present case because these Guidelines would come into picture once the Court is satisfied that yes, despite due­diligence the party could not incorporate in the pleading which it subsequently intents to incorporate by way of amendment in the pleadings.

16. As the plaintiff has not been able to cross the first hurdle of due­diligence itself, in this backdrop, the Guidelines so laid down by Hon'ble Supreme Court are not attracted at all, because the same will be attracted only if the Court after being satisfied with regard to due­diligence has to apply its ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP 10 judicial mind as to whether the amendment has to be allowed or not.

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17. In view of the observations made hereinabove, as this Court does not finds any merit in the present petition, the same is dismissed, so also, pending miscellaneous applications, if any. Interim order, if any, stands vacated.

(Ajay Mohan Goel) Judge December 05, 2019 (Rishi) ::: Downloaded on - 06/12/2019 20:26:28 :::HCHP