Punjab-Haryana High Court
Maharwal Khewaji Trust vs Major Jagdev Singh Brar & Others on 11 September, 2009
Author: Ajay Tewari
Bench: Ajay Tewari
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.294 of 2008(O&M)
Decided on : 11.09.2009
Maharwal Khewaji Trust, ... Petitioner
Faridkot
versus
Major Jagdev Singh Brar & others ...Respondents
CORAM : HON'BLE MR. JUSTICE AJAY TEWARI
Present : Mr. Arun Palli, Sr. Advocate
with Mr. KVS Kang, Advocate
for the petitioner.
Mr. G.S.Brar, Advocate
for the respondents.
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1.Whether Reporters of local newspapers 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?
AJAY TEWARI, J. (ORAL)
This revision petition has been filed against the order dated 29.11.2007 allowing the application for amendment, moved by the respondents. The respondents had filed a suit dated 13.08.2003 challenging the continuation of the petitioners as Trustees, Para No.5(c) of the plaint was in the following terms:
"That the plaintiffs seek relief of this Hon'ble Court for institution of this suit under Section 92 of the C.P.Code and it may be mentioned herein that in granting the relief the Court need not issue the notice to the defendants, as held in AIR - 1989-All-194 CR No.294 of 2008 -2- 1991-SC-221 AIR-1982-Pb.-137 It is further, submitted that the object of this suit shall be defeated and frustrated and the defendants shall gain time to cover up the breaches of the trust and the irregularities mentioned in Schedule B by manipulation of the records which is solely in their possession and power."
Written statement dated 20.11.2003 was filed and reply to para No.5(c) was as follows:
"Contents of sub para (c) of para No.5 of the plaint, are wrong, incorrect, hence denied. Plaintiffs are not entitled to seek any relief by filing the present suit under Section 92 of CPC. They have no locus standi to file the present suit nor the Court has any jurisdiction to entertain the present suit. No suit can be decided without any notice to the adversaries. The case law cited is inapplicable to the facts and circumstances of the case. There is no question of defeating the objects of the Trust because suit has been filed on frivolous and untenable grounds and is very likely to fail. There is no question of plaintiffs being beneficiaries of the trust in any way."
Thereafter, on 28.09.2006, the petitioners filed an application under Order 7 Rule 11 seeking rejection of the plaint on the ground that the respondents had not made any prior CR No.294 of 2008 -3- application seeking permission to sue as enjoined by Section 92 (1) of CPC. It is, thereafter, that the respondents filed an application under Order 6 Rule 17 of CPC claiming that for the word "relief" which occurred at two places in para No.5(c) (supra) the word "leave" should be read since this was a typographical mistake.
As mentioned above, it is against the allowing of this amendment that this revision petition has been filed. At the very outset, this Court is of the opinion that keeping in view the tenor of the averments made in para No.5(c) (supra) where reference has been made to Section 92(1) it cannot be gainsaid that what the plaintiffs were seeking was "leave" and the word "relief" has been inserted due to typographical error. Learned counsel has argued that if this application is allowed, the respondents will seek to take an unfair advantage in so much as, they will be able to plead that the amendment having been allowed, it would be deemed that when the notice was issued in the original plaint, implied leave was granted.
In my opinion, no such beneficial inference can be drawn by the respondents. What the Court has done is merely permitted the respondents to correct a typographical error. It will not be permissible for the respondents to argue that merely because of this typographical error having been corrected any implied permission was granted to them to continue the suit. The question whether the suit fulfills the condition of Section 92 CR No.294 of 2008 -4- (1) of CPC would have to be decided by the Court independently on the application under Order 7 Rule 11 filed by the petitioners. With this clarification this revision petition is disposed of.
Parties through counsel are directed to appear before the Trial Court on 21.10.2009.
September 11, 2009 (AJAY TEWARI) sonia JUDGE