Punjab-Haryana High Court
Mohd. Bashir And Ors vs Khushi And Ors on 16 October, 2014
CR No. 4981 of 2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 4981 of 2013
Date of Decision : 16.10.2014
Mohd. Bashir and others .....Petitioners
Versus
Khushi and others ....Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Anil Kumar Garg, Advocate
for the petitioners.
Mr. Sunny K. Singla, Advocate
for the respondents.
R.P. Nagrath, J.
The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, for setting aside the order dated 09.07.2013 (Annexure P-9), passed by the Civil Judge (Junior Division), Malerkotla, rejecting the prayer for amendment of the plaint. The petitioners are the real brothers and they filed the suit alongwith proforma respondent no. 3, seeking declaration that they are owners of the house existing on khasra no. 955/0-0-17 and 956/0-0-14, measuring 81.5/9 sq. yards with consequential relief of injunction restraining respondent no. 1 from transferring the possession of the house to respondent no. 2.
2. Respondent no. 2 is ex parte before the trial Court and suit is being contested by respondent no. 1 alone. The suit was filed in February 2007. The version of plaintiffs is that the house was JITENDER KUMAR 2014.10.30 15:55 I attest to the accuracy and authenticity of this document Chandigarh CR No. 4981 of 2013 -2- inherited by the them from their great grandfather. It was rented out by father of plaintiffs to father of the respondent on a monthly rent of ` 100/-.
3. Respondent no. 1 has claimed himself to be owner of the house having inherited from his forefathers. The petitioner had rather admitted the respondent to be owner of this house in an earlier litigation. It was even disputed that the house is built over the khasra numbers mentioned in the plaint.
4. An application dated 29.10.2009 was filed by plaintiffs before the trial Court under Order 11 Rule 1 of the Code of Civil Procedure for delivery of interrogatories on the ground that respondent no.1 made a statement in the Court on 23.07.2008 that he has alienated the disputed property to respondent no. 2. The interrogatories are about the particulars of the sale deed and nature of documents which respondent no. 1 has executed in favour of respondent no. 2 and whether the same was registered in the office of Sub-Registrar. In response thereto, respondent no. 1 made evasive response that he does not remember the date of execution of the sale deed or the nature of document. Therefore, petitioners moved an application under Order VI Rule 17 CPC to add new relief 'B' for declaration as under:-
"(B) Suit for declaration that the alleged alienation/transfer made by defendant no. 1 in favour of defendant no. 2 of the suit property as detailed in heading (A) of the plaint is illegal, null, void and ineffective and the same is not binding on the plaintiffs JITENDER KUMAR 2014.10.30 15:55 I attest to the accuracy and authenticity of this document Chandigarh CR No. 4981 of 2013 -3- and the said alleged alienation/transfer made by defendant no. 1 in favour of defendant no. 2 and the mutation, if any, sanctioned in favour of defendant no. 2 on the basis of said alleged alienation/transfer is legally liable to be set aside.
5. Prayer was also made to make the consequential amendments in the body of the plaint.
6. The learned trial Court rejected the prayer made by the petitioners vide the impugned order.
7. I have heard learned counsel for the petitioners and perused the impugned order and also the paper-book.
8. I am of the view that prayer made by petitioners for seeking amendment is absolutely vague and cannot be permitted. The consequences of such a response on interrogatories are provided in Order XI Rule 11 CPC which says that where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be. And an Order may be made requiring him to answer, or to answer further, either by affidavit or by viva voce examination, as the court may direct. Without having recourse to such a procedure, it was not possible for the petitioners to make an application with a vague prayer, as permitting such an amendment would not lead to any results. The other recourse open to the petitioners was to inspect the record of the office of Sub-Registrar where property is located to find out the particulars of the alienation made with regard to the disputed property JITENDER KUMAR 2014.10.30 15:55 I attest to the accuracy and authenticity of this document Chandigarh CR No. 4981 of 2013 -4- during pendency of the suit and make consequential amendments.
9. On a specific query to learned counsel for the petitioners as to what documents they have relied upon with regard to title to the disputed property learned counsel for the petitioner could not make any submission. It may be noticed that the property in question is described by khasra numbers.
10. It has been observed by learned trial Court that the said property falls in khasra numbers and in case respondent no. 1 has transferred said property in favour of respondent no. 2, there must be an entry in the revenue record and the petitioners can ascertain and produce those documents if any with regard to transfer for appropriately amending the prayer in the suit. It was also observed by the trial Court that the petitioners wanted to challenge the mutation if it was sanctioned in favour of respondent no. 2 on the basis of alleged alienation, but they have not produced any revenue record. I am of the view that a fishing enquiry for such like amendment is not possible. It is thus not possible to say from the above circumstances that there is any illegality or perversity committed by the trial Court while dismissing the prayer for amendment.
No merit. Dismissed.
October 16, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.10.30 15:55
I attest to the accuracy and
authenticity of this document
Chandigarh