Punjab-Haryana High Court
Indian Sulphacid Industries Ltd. vs Joginder Kaur And Anr. on 27 May, 1999
Equivalent citations: (1999)122PLR734
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Vide this common judgment I propose to dispose of three revision petitions being CR No. 5089 of 1998, CR No. 1109 of 1999 and CR No. 1764 of 1999 as common question of law founded on somewhat similar facts and pleas arises for consideration. Indian Sulphacid Industries Limited had filed three different suits for possession of small pieces of land against different defendants. They filed a suit for possession of 100 square yards of land in Khasra No. 262 more particularly described in the plaint and that suit is against Joginder Kaur. The second suit was filed for possession of 173 square yards of land in Khasra No. 260 against Smt. Sukhwinder Kaur and another and the third suit was filed for possession of 120 square yards of land in Khasra No. 262 against Avtar Singh and another. In all these three suits relief of injunction was also prayed against the respective defendants from raising any construction and from alienating or transferring the suit land.
2. The case of the plaintiff was that he is owner of the entire property forming amongst other Khasra Numbers, Khasra No. 260 and 262. According to him the defendants were in illegal possession of the said land which they had occupied during the pendency of proceedings and, therefore, he filed the suits for possession as afore indicated. The suits were contested by the defendants who claimed their own independent rights in the property.
3. During the pendency of the suit the plaintiff filed an application under Order 6 Order 17 read with Section 151 CPC for amendment of the plaint. Following were the amendments which were sought to be introduced by the plaintiff:-
In the heading of plaint at page No. 2 after word "defendants" appearing in first line, following words may be allowed to be added by way of amendment:-
"by removing the malba unauthorisedly and illegally raised by the defendants." Similar line may also be allowed to be added in para No. 18 of plaint after words pian attached" appearing in the 5th line:-
3. In para No 9 of the plaint after word "Court" appearing in second line at page No. 10 following lines may be allowed to be added by way of amendment:-
"The land has been illegally sold by Dewan Chand Kapoor s/o of Mulakh Raj Kapoor Karta of Dewan Chand Kapoor and brothers in favour of the defendants and has been "illegally purchased by the defendant despite the fact that publications were given in various news papers informing the general public including the defendants that the land in question belongs to the plaintiff and if any body purchases the land from any other person except the plaintiff company, he/she/they shall do so at his/her/their own risk and costs. Posters were also pasted at conspicuous parts of the locality and hand bills as well as pamphlets were also distributed in the area warning the general public not to buy the suit land as well as other properties belonging to the plaintiff company situated at Kot Khalsa Urban. Opp. Khalsa College, G.T. Road, Amritsar."
Somewhat similar amendments were sought in the other two suits which were fixed before the same Court.
4. The learned trial Court allowed application for amendment in the suit against Avtar Singh and Sukhwinder Kaur, but in the case of Joginder Kaur and application of the plaintiff was dismissed. Two revisions being CR No. 1764 of 1999 and CR No. 1109 of 1999 have been preferred by the defendants in the suit challenging the order allowing the amendment application while CR. No. 5089 of 1998 has been field by the plaintiff where his application for amendment has been declined by the learned trial Court.
5. The plea on the basis of which the application of the plaintiff for amendment has been dismissed is that the plaintiff was careless and negligent and if the amendment is allowed it would cause serious prejudice to the rights of the defendants as the application has been filed during the examination of one of the witnesses of the plaintiff. The learned trial Court has also expressed the view that the limitation would come in the way of the plaintiff's application being allowed and would take away the legal right of the defendant arising therefrom.
6. In the case of Joginder Kaur the sale deed dated 28.10.1982 which has been challenged and the suit for declaration, injunction and possession has been filed on 24.6.1994 is admittedly within the period of limitation. As is clear. from the above amendments all that the plaintiff wants is an ancillary or a consequential relief i.e. in the event the decree for possession is passed, the same may be passed with a direction to remove the construction/malba raised in the property in dispute. As far as right of the plaintiff over the property is concerned, a suit between the erstwhile partnership, its partners and the plaintiff company into which the partnership was converted was passed as back as on 16.4.1979. The parties also contested proceedings under Section 145 Cr.P.C. on the basis of Kalandra dated 20.8.1981. A receiver was appointed and vide order dated 27.9.1989 possession of the company was confirmed.
7. It is a settled principle of law that the amendment of the pleadings should be normally not declined unless and until such amendment is barred under law and would cause serious prejudice to the non-applicant. In the present case the parties are already at issue in regard to all the substantive reliefs in relation to the suit property and advantage of this relief cannot be said to prejudice the rights of the defendants to the extent which would disentitle the plaintiff from claiming such an amendment. If the plaintiff fails in getting a decree for possession, this relief would be inconsequential but if the plaintiff is granted a decree for possession and injunction by the Court then grant of this mandatory injunction could hardly be said to prejudice the interests of the defendants. Such a controversy in any case would be incidental to the main controversy which is already subject matter of adjudication before the Court of competent jurisdiction.
8. The other amendment only relates to pleading of a fact that a public notice was issued in relation to the suit land giving warning to the public at large not to deal with the property in suit.
9. At this stage it may be appropriate to make a reference to the judgment of Piare Singh v. Santokh Singh and Anr., (1998-2)119 P.L.R. 360 and Madan Lal v. Kabal Singh and Ors., (1998-2) 119 P.L.R. 355, where different Benches of this Court held that such amendments should be allowed and where alternative or consequential relief is being prayed, the plea of limitation at the state of conceded application for amendment would not be so material as it would be dependent on the evidence which would be led by the parties during the suit. In other words, it would be a question of law and facts mixed which could require evidence before rejection of a claim. The Court should be determining the real controversy between the parties and to grant complete relief to them rather than shut the doors for complete adjudication of the dispute between the parties at this stage. In any case the plea of limitation would be open to the non-applicants defendants and they do not suffer any prejudice and can contest the suit on merits without any impediment including on the plea of limitation.
10. The previous litigation between the parties in relation to the said properties in any case support the case of the applicant for seeking such an amendment. The consequences arising from some negligence and delay on the part of the plaintiff can be fairly safe-guarded by imposition of costs against the plaintiff and in favour of the defendant.
11. For the reasons afore-stated CR No. 5089 of 1998 is allowed. The order of the learned trial Court dated 9.9.1998 passed by the learned Civil Judge (Junior Division) Amritsar is hereby set aside. The application of the petitioner under Order 6 Rule 17 read with Section 151 CPC is allowed without prejudice to the plea of limitation which may be raised by the defendants in the suit subject to Rs. 1,500/-as costs.
12. For the same reasons and obviously in the other two petitions No. 1764 of 1999 and 1109 of 1999 the impugned order does not suffer from any error of jurisdiction or otherwise which would call for interference by this Court in exercise of its jurisdiction and as such the same are hereby dismissed.