Punjab-Haryana High Court
Improvement Trust Ludhiana vs Ujjagar Singh & Ors on 23 December, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
C.R. No. 7642 of 2014 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No. 7642 of 2014 (O & M)
Date of decision: 23.12.2014
Improvement Trust, Ludhiana ...Petitioner(s)
Versus
Ujjagar Singh and others ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. G.S. Attariwala, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
C.M. No. 28245-CII of 2014 Application for placing on record objections dated 26.09.1992 as Annexure P-8 and for exemption from filing certified copy of the same is allowed, subject to all just exceptions.
The said Annexure is taken on record.
C.R. No. 7642 of 2014 Challenge in the present revision petition is to the order dated 02.08.2014 (Annexure P-5) passed by the Additional District Judge, Ludhiana whereby, the application for amendment of the objection petition of the petitioner-Improvement Trust has been dismissed on the ground of delay. The reasoning given by the Lower Appellate Court which is dealing with the appeal arising out of the dismissal of the objections is that the objections were originally filed on 26.09.1992 whereas, the application for amendment has been filed in the year 2014, after about 22 years and no explanation has been given for such a long delay. It has further been SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 2 noticed that the facts which are sought to be incorporated in the objection petition are admittedly not subsequent events and were in the knowledge of the judgment debtor from the very beginning. It has been noticed that the Executing Court had dismissed the application for amendment vide order dated 11.09.2012 and the said order was never challenged before this Court and the application filed before the Lower Appellate Court accordingly was without any merit.
Counsel for the petitioner-Trust has vehemently argued that the delay was only on account of the fact that the matter had been remanded by the Apex Court on 09.06.2010. It was only thereafter the occasion would arise to the Improvement Trust to file the application for amendment of the objection petition. It is accordingly submitted that the Lower Appellate Court was in error in not allowing the amendment.
After hearing counsel for the petitioner, this Court is of the opinion that the Trust has been negligent in prosecution of its case right from day one. Several opportunities had been granted to it and the question arises as to how many opportunities can be granted. For this, necessarily reference to the facts has to be made.
It is a matter of record that the land was acquired by the Improvement Trust and an award was made in favour of the land owners to the tune of `4,27,068.20. The Trust did not deposit the amount which led them to approach the Executing Court. The property owned by the Trust measuring 7 kanals 8 marlas was attached for realization of the decretal amount but none appeared on behalf of the appellant-judgment debtor and accordingly, the property was sold in auction on 12.08.1992. The auction purchaser namely M/s. Jagan Singh and Company-respondent no. 4 SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 3 deposited a sum of `22,65,000/- and the sale was confirmed in its favour. Objections were filed against the said auction under Order 21 Rule 90 CPC by the Trust but due to non-prosecution, the evidence of the Trust was closed and the objections were dismissed in default. The appeal was filed challenging the dismissal which was barred by limitation and the Appellate Court dismissed the same. Initially, Second Appeal No. 820 of 1994 was filed before this Court but it was converted into civil revision which was dismissed on 09.05.2003. The order was sought to be reviewed unsuccessfully on 08.07.2004 and thereafter, the matter went to the Apex Court.
The Apex Court, vide detailed order dated 09.06.2010 (Annexure P6), remanded the matter to the Executing Court after imposing costs of `50,000/- which were to be paid within 3 weeks and it was a condition precedent. The Improvement Trust, in its usual slumbering attitude, failed to remit the costs to the auction purchaser within the prescribed period which led to the Executing Court dismissing the objections. This Court in C.R. No. 7684 of 2011 imposed another sum of `50,000/- as additional costs vide order dated 22.02.2012 (Annexure P4) and directed the Executing Court to dispose of the objections in accordance with law as expeditiously as possible keeping in view the directions issued by the Apex Court. Thereafter, an application for amendment of the objections was filed before the Executing Court wherein, it was pleaded that the Court Auctioneer was not competent to sell the building and the building was never attached and identity of the plot attached by the Court Auctioneer was to be confirmed. The area of the building was not mentioned and the site plan was not correct.
SAILESH RANJAN2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 4
The application was contested by the auction purchaser that amendment could not be allowed at this stage. The facts were in the knowledge of the judgment debtor and no efforts had been made to amend the petition earlier before the High Court or the Supreme Court and the vital interests were involved and prejudice would be caused to the auction purchaser. The plea taken that the objections had been drafted in a hurry to obtain a stay order was accordingly rejected and it was held that the plaintiff was not entitled to any benefit of the judgments which have been relied upon by the Trust and the application was dismissed on 11.09.2012 (Annexure P1).
The Trust, instead of filing revision petition against the said order, filed an application on 09.11.2012 (Annexure P-2) before the Executing Court for adjournment of the case to file the revision. It is an admitted fact that the said revision was never filed. In the meantime, the objections on merits were dismissed on 10.11.2012 since issues had already been framed and the Trust had examined two witnesses, which led to the filing of the appeal before the Lower Appellate Court. The Trust again chose to go into its usual stage of hibernation for a period of 1-1/2 years and thereafter, filed the application for amendment before the Lower Appellate Court on 24.05.2014 (Annexure P-4) on the same grounds as had been raised before the Executing Court. The said application has now been dismissed vide order dated 02.08.2014 by the Additional District Judge, Ludhiana on the grounds noticed above.
Thus, from the sequence of events, it would be clear that opportunity was always there with the Trust time and again to file the application for amendment at an appropriate period of time after remand but SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 5 it has chosen not to do so. When the order dated 11.09.2012 was passed whereby, the application for amendment was dismissed by the Executing Court for the first time, it had an option to come to this Court. It also moved an application, as noticed above, for grant of an adjournment to approach this Court but it chose not to file the civil revision in this Court. It invited an order on merits and the Executing Court has passed an order against the Trust on 10.11.2012. Thereafter, the application was filed before the Appellate Court. A vested right has accrued to the auction purchaser on account of the decision of the objections on merits. To allow any amendment of the facts which were well in the knowledge of the Trust regarding the area of the land and the identity of the land which was attached way back 22 years and auctioned on 12.08.1992 at this stage could not be done without showing any due diligence on the part of the Trust. The Apex Court has time and again held that in view of the proviso under Order 6 Rule 17 CPC, once the trial has begun and the issues have been framed, amendment is not permissible and only if due diligence is shown, then the amendment can be allowed. The application filed by the Trust under Order 6 Rule 17 CPC only shows that the objections could not be taken inadvertently on account of the urgency and no prejudice would be caused. The aspect of due diligence in such circumstances is missing.
In Ajendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and others, 2006 (12) SCC 1, the issue of due diligence was dilated upon by the Apex Court and it was held as under:-
"54. In our opinion, the facts above-mentioned would also go to show that the appellants are lacking in bona fide in filing this special leave petition before this SAILESH RANJAN Court. It is also to be noticed that the High Court has 2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 6 recorded relevant points in its elaborate judgment dated 05.10.2005 and have been dealt with despite the opposition of the contesting respondents that these pleas were not taken in the written statement. Under these circumstances, non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has dis-entitled the appellants to any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case.
55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.
56. An argument was advanced by Mr. Parasaran that affidavit filed under Order 18 Rule 4 constitutes Examination- in-Chief. The marginal note of order 18 rule 4 reads recording of evidence. The SAILESH RANJAN 2014.12.31 12:32 I attest to the accuracy and integrity of this document C.R. No. 7642 of 2014 (O & M) 7 submission is that after the amendments made in 1999 and 2002 filing of an affidavit which is treated as examination in chief falls within the amendment of phrase recording of evidence.
57. It is submitted that the date of settlement of issues is the date of commencement of trial. [Kailash vs. Nankhu & Ors. (supra)] Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination in chief as date of commencement of trial, the matter will fall under proviso to order 6 Rule 17 CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants)."
Accordingly, keeping in view the consistent defaults which have been committed by the Trust, this Court is of the opinion that the order passed by the Lower Appellate Court is not liable to be interfered with due to the own conduct of the Improvement Trust and the present revision petition is accordingly dismissed.
23.12.2014 (G.S. SANDHAWALIA)
shivani/sailesh JUDGE
SAILESH RANJAN
2014.12.31 12:32
I attest to the accuracy and
integrity of this document