Punjab-Haryana High Court
Bal Krishan vs Ram Lubhai And Others on 17 August, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Civil Revision No.5209 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.5209 of 2009
Date of decision: 17.08.2012
Bal Krishan
......Petitioner
Versus
Ram Lubhai and others
.......Respondents
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. T.N. Sarup, Advocate,
for the petitioner.
Mr. R.D. Bawa, Advocate,
for respondent Nos.1 and 2.
*****
A.N. Jindal, J.
This petition assails the order dated 02.09.2009 passed by the Civil Judge (Junior Division), Batala, dismissing the application filed by plaintiff No.1-petitioner (hereinafter referred as 'the petitioner') for amendment of the plaint.
The petitioner filed a Civil Suit No.296 of 08.11.1997 against the defendants-respondent Nos. 1 and 2 (hereinafter referred as 'the respondents') for partition of the following property:-
(i) Double storey house bounded as under;
North - street;
South - house of Shri Muni Lal and Shri Sohal Lal;
East - house of Shri Hans Raj Puri;
West - house of Shri Des Raj,
situated at Takki Mohalla, Chakri Bazar, Batala.
(ii) Double storey house bounded as under;
North - house of Sharma Ji;
South - street and house of Shri Roshan Lal;
East - street and house of Shri Roshan Lal;
West - house of Shri Roshan Lal,
Civil Revision No.5209 of 2009 2
situated at Post Office Street, Inside Nehru Gate, Batala. After framing of issues, the trial commenced on 12.02.1999. Thereafter, petitioner examined as many as seven witnesses and thereafter, the respondents examined 14 witnesses and closed their evidence. When the case was fixed for rebuttal evidence, the petitioner moved an application for amendment of the plaint in the following manner:-
"(i) To amend the title of the suit by substituting the words " House No. B-XXV/89, Gokal Gali, Sarafan Bazar, Batala" in place of the words "
House No. 572, New Bank Colony, Pathankot."
(ii) To amend the title of the suit by substituting the words "5. Sh. Vinod Kumar son of" in place of the words "5. Master Vinod Kumar minor son of."
(iii) In the title of the suit the plaintiffs are to delete the words "6. Baby Preeti daughter of."
(iv) In the heading of the plaint containing the description of the suit properties, the plaintiffs are to add the words "bearing property No. B- VIII/552, Batala" after the words "(ii) Double Storey House" and before the words "bounded on the."
(v) In para No.2 of the plaint, the plaintiffs are to substitute the words "double storey house situated at Taki Mohalla, Chakri Bazar, Batala, as detailed in the heading of the plaint and Shri Kanshi Ram son of Shri Pritam Dass, resident of Taki Mohalla, Batala, was the owner in possession of the double storey house bearing Property No. B-VIII/552, Batala, situated at Post Office Street, Inside Nehru Gate, Batala, as detailed and described in the heading of the plaint" for the words "house detailed and described in the heading of the plaint", occurring in line No.3 of paraNo.2 of the plaint.
(vi) The plaintiffs are to add the following para No.2-A before the existing paraNo.3 of the plaint:-
"2-A. That the said Shri Kanshi Ram son of Shri Pritam Dass, resident of Taki Mohalla, Chakri Bazar, Batala, who was the father-in-law of plaintiff No.1 and maternal grandfather of plaintiff Nos. 2 to 5 died intestate in December, 1972, leaving behind the defendants, Smt. Sudesh Kumari, his daughter and Smt. Pushpa Wanti, his widow as his legal heirs under Schedule-I of the Hindu Succession Act, 1956, who succeeded to and inherited the Estate of the said deceased Shri Kanshi Ram including the aforesaid double storey house bearing Property No. B-VIII/552, Batala situated at Post Office Street, Inside Nehru Gate, Batala, in equal shares i.e. to the extent of ¼ share each."Civil Revision No.5209 of 2009 3
(vii) The plaintiffs are to substitute the words "suit properties in equal shares" occurring in line No.3 of para No.3 of the plaint with the words "double storey" house situated at Taki Mohalla, Chakri Bazar, Batala and as detailed and described in the heading of the plaint in equal shares and ¼ share of the said deceased Smt. Pushpa Wanti in the said double storey house situated at Post Office Street, Inside Nehru Gate, Batala, in equal shares."
(viii) The plaintiffs are to substitute the following para No.4 in place of the existing para No. 4 of the plaint:-
"4. That the said Smt. Sudesh Kumari died intestate on 20.09.1997 at Pathankot leaving behind the plaintiffs and Baby Preeti, her daughter (now deceased) as her only legal heirs under the provisions of the Hindu Succession Act, 1956, who succeeded to and inherited the 1/3 share of the said Smt. Sudesh Kumari in the suit properties in equal shares i.e. 1/18 share each. The said Baby Preeti who was earlier plaintiff No.6 died intestate at Batala on 04.01.2005 and her 1/18 share in the suit properties was succeeded to be inherited by plaintiff No.1 being her father and legal heir under Section 13 of the Hindu Succession Act, 1956. Thus, the plaintiff No.1 is the joint owner in possession to the extent of 1/9 share in the suit properties whereas the plaintiff Nos. 2 to 5 are the joint owners in possession of the suit properties having 1/18 share each."
The respondents submitted reply to the aforesaid amendment sought for by the petitioner and stated that the petitioner has taken self contradictory stand, as earlier the suit was filed on the ground that the suit property, including the house in question, originally belonged to Pushpa Wati from whom they have inherited the same. Now the petitioner wants deletion of words "Kanshi Ram was the owner of the property, House No. B-VIII/552, Batala". It means now he claims that he had no right, title or interest in the house in question. The petitioner also wants to change the number and location of the properties. As such, the proposed amendment being contradictory to the plea, as raised by them in the plaint, could completely disturb the original status of the pleas raised by the petitioners. It was further submitted that these amendments are not necessary for determining the questions into controversy and effective adjudication of the suit. The Civil Revision No.5209 of 2009 4 amendments sought for are quite belated. The respondents have placed reliance on the judgment delivered by the Hon'ble Supreme Court in case Vidyabai and others Vs. Padmalatha &another, 2009 (1) Rent Control Reporter 120, wherein it was observed that the Court can allow the amendment before the commencement of the trial and not after that and the trial commences as and when first witness is examined.
Having heard the rival contentions of the parties, some glaring facts need to be mentioned. Pushpa Wati, whose legacy is being claimed by the parties, had died in the year 1987, leaving behind three daughters i.e. respondent Nos. 1 & 2 and Smt. Sudesh Kumari wife of petitioner No.1, who succeeded to and inherited the suit properties in equal shares. Later on Smt. Sudesh Kumari died intestate on 20.09.1997. The present suit was filed in the year 1997. The case continued lingering on in the Courts and this application for amendment was filed in the year 2008 i.e. 11 years after filing of the suit. The inheritance had opened on the death of Kanshi Ram, the original owner of the suit properties, who died in the year 1972. No doubt the law of amendment is quite liberal, but the Legislature, in its wisdom in order to curtail the delay in disposal of the cases and to avoid unnecessary superfluous applications for amendment, has amended the law so as to mention that such amendments should be allowed only before commencement of the trial. The Hon'ble Apex Court has sat over the issue in Vidyabai's case (supra), wherein it was observed as under:-
"7. By reason of the Civil Procedure Code (Amendment)Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."Civil Revision No.5209 of 2009 5
Further, the Hon'ble Apex Court while deciding the issue, as to when the trial is deemed to have commenced, observed as under:-
"11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. V. Shapoorji Data Processing Ltd., 2004 (1) RCR (Civil) 259 in the following terms:
"15. The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.
16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross- examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it."
In any case, the Hon'ble Apex Court did not discourage those amendments, which are sought to be made by the parties, if they convince the Court that such amendments are necessary for just decision of the case and could not be made by the party claiming, despite due diligence made by it or that the same does not prejudice the rights of the parties. It has been further observed as under:-
"14. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed."
In the present case, the amendment sought for after 11 years of filing of the suit, if allowed, can change the nature of the suit.
No grounds to interfere.
Dismissed.
(A.N.Jindal) 17.08.2012 Judge ajp