Punjab-Haryana High Court
Raman Kumar Son Of Shri Harbans Raj vs Baldev Singh Son Of Kewal Singh on 19 July, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3348 of 2012 (O&M)
Date of decision:19.07.2013
Raman Kumar son of Shri Harbans Raj, running M/s Sandeep
Bartan Store Patti Nilowal, Main Bazar, VPO Bilga, Tehsil Phillaur.
...Petitioner.
versus
Baldev Singh son of Kewal Singh, resident of Village and Post
Office Bilga, Patti Nilowal, Tehsil Phillaur, District Jalandhar,
presenting residing at 23 Brunslow, Close Exley Wolver Hampton
Wv106TF UK, through his special attorney Shri Rupinder Singh son
of Himat Singh, resident of Village Wahid, Tehsil Phagwara,
District Kapurthala.
....Respondent
II. Civil Revision No.3506 of 2012 (O&M)
Paramjit Singh son of Gurmej Lal, running M/s Paramjit Studio
Patti Nilowal, Main Bazar, VPO Bilga, Tehsil Phillaur.
...Petitioner.
versus
Baldev Singh son of Kewal Singh, resident of Village and Post
Office Bilga, Patti Nilowal, Tehsil Phillaur, District Jalandhar,
presenting residing at 23 Brunslow, Close Exley Wolver Hampton
Wv106TF UK, through his special attorney Shri Rupinder Singh son
of Himat Singh, resident of Village Wahid, Tehsil Phagwara,
District Kapurthala.
....Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Rajinder Kumar Singla, Advocate,
for the petitioner.
Mr. Vikas Bahl, Advocate,
for the respondent.
Kumar Sanjeev
2013.07.24 11:05
I attest to the accuracy and
integrity of this document
chandigarh
Civil Revision No.3348 of 2012 (O&M) -2-
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
----
K.Kannan, J. (Oral)
1. The revision petitions are at the instance of the defendant in the respective two cases where the application for amendment of the plaint was resisted by the defendant to contend that it was brought up belatedly and that it was setting up new cause of action which changes the character of suit.
2. Two suits were filed by the plaintiff claiming himself to be the landlord and describing the defendant to be his tenant and that the suit was being filed after determination of tenancy by notice under Section 106 of the Transfer of Property Act. The defendant pleaded that there was no form of tenancy between the plaintiff and the defendant and that he was a defendant from a mortgagee of the father of the plaintiff and that the suit for recovery of possession cannot be laid without redeeming the mortgage and treating the defendant as the plaintiff's lessee. During the pendency of suit, the plaintiff brought an amendment that he was a heir at law to the father and that his own claim to the property was only in his capacity as a co-heir along with yet another heir. He therefore claimed that the suit for recovery of possession must be taken as not merely at the instance of the plaintiff in his capacity as the landlord Kumar Sanjeev 2013.07.24 11:05 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3348 of 2012 (O&M) -3- but in the alternative, it should be treated as a suit for recovery of possession in his capacity as a co-owner of the premises.
3. The defendant is entitled to succeed and non-suit the plaintiff, if a plea of direct tenancy is not made between the plaintiff and the defendant. If the subsistence mortgage is established and the defendant proves himself to be the tenant from the mortgagee, the plaintiff cannot get a decree for possession either as a landlord or as an owner. In whatever way the plaintiff pleads, the defendant's right cannot be lost and no prejudice could be caused by the amendment ordered.
4. If there is a delay in filing the application at all times, the delay could have been compensated in terms of cost. The learned counsel refers me to three decisions of this Court regarding the procedure to be adopted for accepting or rejecting amendment to applications. In Prem Chand Versus Chetan Dass-2006(1) PLR 604, the Court held that an application cannot be allowed to add or substitute a new cause of action which is inconsistent to the admitted facts or a time barred claim by way of amendment. An alternative plea of landlord to seek for ejectment as owner is really not inconsistent. A landlord need not be an owner and apply for ejectment but if he also has a status as an owner, there is nothing inconsistent about it. The judgment cited will not therefore apply. In Charan Kaur and another Versus Pritam Singh and others-2006 Kumar Sanjeev 2013.07.24 11:05 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3348 of 2012 (O&M) -4- (2) PLR 383, the Court held that the plea which was very much available to the parties when the written statement was filed cannot be allowed by way of amendment. In that case, the contention was that the parties were being governed by customs before coming into existence of Hindu Succession Act and the said plea very much available and the Court said that it could not be brought through an amendment. It is normally a judicial practice as a rule of proper pleading that a person states in his defence or in his pleading of every fact that he knows. If he brings any other fact, it gives room to a prolonged trial and also takes the parties by surprise. The test shall always be whether there is surprise at the trial and any right which is accrued to the party is lost by amendment. If no such difficulty exists, as in this case I have pointed out that the defendant will not be put to any prejudice in whatever way the plaintiff changes his colour, I will not find an issue to apply the judgment in Charan Kaur. The judgment in Bahadur Singh and another Versus Avtar Singh-2007(3) PLR 628 was reaffirmation of the same point that a party who knew a particular fact even at the stage of commencement of trial ought to exercise due diligence to plead all necessary facts and amendment cannot be allowed at a belated stage. This again, I would reiterate that if the applications come up at a belated stage, the parties shall be properly compensated with appropriate costs.
Kumar Sanjeev 2013.07.24 11:05 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.3348 of 2012 (O&M) -5-
5. In this case, the plaintiff cannot have a contention that he did not know of the facts which he was raising by way of amendment. The reparation that could have been granted to the defendant for the delay in amendment particularly in the light of the amended provisions of the Civil Procedure Code that dictate that an amendment in the pleadings shall not be brought after the commencement of the trial unless the party could show that in spite of due diligence, he could not state the facts earlier, I would think that the plaintiff could be subjected to a payment of ` 2,500/- as costs in each case to be paid to the contesting defendant who is revision petitioner before this Court.
6. The only modification that I would subject the impugned order would therefore be to impose costs of ` 2,500/- in each case.
7. Both the civil revisions are disposed of as above.
(K.KANNAN) JUDGE 19.07.2013 sanjeev Kumar Sanjeev 2013.07.24 11:05 I attest to the accuracy and integrity of this document chandigarh