Punjab-Haryana High Court
Satinder Singh vs Jatinder Singh And Anr on 23 December, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2015.01.06 11:55
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.3755 of 2011 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3755 of 2011 (O&M)
Date of decision:23.12.2014
Satinder Singh ...Petitioner
Versus
Jatinder Singh and another ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Ajaivir Singh, Advocate,
for the petitioner.
Mr. B.B.S.Sobti, Advocate,
for the respondents.
*****
Rakesh Kumar Jain, J.
The petitioner has challenged order dated 13.05.2011 by which application filed by the respondents under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") has been allowed; 3 more additional issues have been framed in terms of Order 14 Rule 5 of the CPC and the case has been remanded back to the trial Court with a direction that a report regarding the issues framed, be sent to the lower Appellate Court, within the prescribed time.
In brief, the parties in this case are the children of one Sampuran Singh. In the year 1971, the petitioner migrated to Canada and VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.3755 of 2011 (O&M) [2] ***** for the purpose of management of his property, he appointed his mother as the attorney and thereafter, appointed his brother Jatinder Singh (respondent no.1) as his attorney. Since respondent no.1 was misusing the power of attorney, therefore, it was cancelled on 22.03.1995 by a registered cancellation deed. However, on coming to know that respondent no.1, with mala fide intention, was trying to alienate one building bearing Municipal No.B-II/1553 and 1594 to Bimal Kumar, the petitioner filed the Civil Suit for permanent injunction on 14.06.1996 pertaining to the said building apprehending its sale.
In the written statement, since the defendant had alleged that the said property has been jointly sold by the petitioner and respondent no.1 by way of 2 registered sale deeds dated 27.10.1993, therefore, the petitioner filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint in order to challenge the said sale deeds. The application was allowed by the trial Court on 19.02.2004 and the suit was accordingly converted from permanent injunction to declaration but the revision against that order bearing CR No.1424 of 2004 filed by respondent no.1 was allowed by this Court and the amendment was set aside.
The petitioner had also filed another suit for declaration to challenge the decree dated 03.05.1986 and also asked for rendition of accounts. The suit was dismissed on 14.11.2009 against which the petitioner had filed an appeal. During the pendency of the appeal, the respondents had filed an application under Order 6 Rule 17 and Order 14 Rule 5 of the CPC in order to amend the written statement and for framing VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.3755 of 2011 (O&M) [3] ***** the additional issues. The said application has now been allowed against which the present revision petition has been filed.
Counsel for the petitioner has submitted that the application has been allowed by the lower Appellate Court with the following observations:-
"The passing of the order by the Hon'ble High Court on 28.10.2009 was not in the knowledge of the defendant/respondent and it is certainly a subsequent event. On the passing of the orders by the Hon'ble High Court, a right has been accrued to the defendant to take objections that the present suit filed on 02.08.1996, after the previous suit field on 14.06.1996 being barred by taking objections of Order 2 Rule 2 CPC as well as under
Section 10 CPC."
It is submitted that the lower Appellate Court, while passing the impugned order, has allowed the amendment in the written statement and framed 3 more issues, which read as under:-
"1. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC?OPD.
2. Whether the suit of the plaintiff is barred under Section 10 of CPC?OPD.
3. Whether the plaintiff is barred from agitating the relief of declaration in the present suit on account of the order dated 28.10.2009 passed by the VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.3755 of 2011 (O&M) [4] ***** Hon'ble High Court in Civil Suit No.311 of 14.6.1996 being barred by time?OPD."
It is submitted by learned counsel for the petitioner that when the second suit was filed on 26.07.1996, it was categorically mentioned by him in para 16 that a suit for injunction is already pending between the parties in the Court of Civil Judge (Junior Division), Ludhiana which is fixed for 21.08.1996, therefore, the respondents cannot allege that they came to know about the first suit from the order of this Court passed on 28.10.2009 for the purpose of taking the plea of Order 2 Rule 2 of the CPC and amending the written statement. In this regard, he has relied upon a judgment of the Supreme Court in the case of Jaswant Kaur and another v. Subhash Paliwal and others, 2010(1) R.C.R. (Civil) 617 and argued that the amendment in the pleadings cannot be brought in violation of the proviso to Order 6 Rule 17 of the CPC.
On the other hand, counsel for the respondents has submitted that the law regarding the amendment in the written statement is quite liberal than the amendment in the plaint. In this regard, he has relied upon a judgment of this Court in the case of Arya Mitter and another v. Harbans Lal and another, 2010 (Suppl.) Civil Court Cases 862 (P&H) and two judgments of the Supreme Court in the case of Andhra Bank v. ABN Amro Bank N.V. and others, 2007(2) Apex Court Judgments 614 (S.C.) and Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors., 2010(1) Civil Court Cases 001 (.S.C.).
I have heard learned counsel for the parties and examined the VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.3755 of 2011 (O&M) [5] ***** available record with their able assistance.
The short issue involved in this case is as to whether the findings recorded by the lower Appellate Court, while allowing the application for amendment, are justified?
The respondents had taken the plea before the lower Appellate Court that the second suit filed by the plaintiff is barred under Order 2 Rule 2 of the CPC because the petitioner could have challenged the decree dated 03.05.1986 in the year 1996 and asked for rendition of accounts in the first suit as well, therefore, only a legal plea has been taken which has been rightly allowed by the lower Appellate Court and once the amendment has been allowed, the issues have been framed according to the pleadings pertaining to the effect of Order 2 Rule 2 or Section 10 of the CPC. However, this plea, at the appellate stage is not available to the respondents in the manner in which it has been allowed by the lower Appellate Court as it has been observed that the respondents had come to know about the pendency of the first suit after the decision of the revision petition by this Court in the year 2009 and thereafter the application has been filed, whereas it has been categorically mentioned in para 16 of the second suit that the petitioner had earlier filed a suit for permanent injunction which was pending in the Court of Civil Judge (Junior Division), Ludhiana, therefore, the respondents were very much aware of the pendency of the first suit by the petitioner in the year 1996 itself and could have easily taken the plea of Order 2 Rule 2 or Section 10 of the CPC at that time but the said plea has been taken as an afterthought at the stage of appeal which has been allowed VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.3755 of 2011 (O&M) [6] ***** erroneously by the lower Appellate Court on the ground that the respondents have acquired the knowledge of the pendency of the first suit only after the decision of the High Court on 28.10.2009 when the revision petition filed by the respondents against the order by which amendment of the plaintiff in the earlier suit was allowed and the suit for permanent injunction was converted into suit for declaration was allowed.
To my mind, the finding of the lower Appellate Court in this regard are contrary to the record and as such unsustainable in the eyes of law.
Insofar as the judgments relied upon by learned counsel for both the parties are concerned, those are applicable on the facts and circumstances of those cases decided by the respective Courts but insofar as the present case is concerned, the lower Appellate Court has definitely committed a patent error of law in allowing the application of the respondents on the flimsy grounds.
In view of the aforesaid discussion, the present revision petition is found to be meritorious and the same is hereby allowed and the impugned order passed by the Court below is set aside.
December 23, 2014 (Rakesh Kumar Jain) vinod* Judge
Note: Whether the judgment should be reported in the Digest? Yes / No