Punjab-Haryana High Court
Tanvir Singh Bal & Others vs Surinder Kaur & Others on 18 December, 2018
Equivalent citations: AIRONLINE 2018 P AND H 77
Author: B.S. Walia
Bench: B.S. Walia
1
(107) IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.7422 of 2017 (O&M)
Date of decision: 18.12.2018
Tanvir Singh Bal and others. ..... Petitioners
Versus
Surinder Kaur and others .... Respondents
BEFORE: HON'BLE MR. JUSTICE B.S. WALIA.
Present: Mr. Vikas Bahl, Senior Advocate with Mr. Akshay Rawal,
Advocate and Mr. Aditya Jain, Advocate for the petitioners.
Mr. Sumeet Mahajan, Senior Advocate with Mr. S.S. Momi,
Advocate and Mr. Amit Kohar, Advocate for respondent
Nos.1 to 4.
***
B.S. Walia, J.
[1] Challenge in the revision petition is to order dated 05.09.2017 (Annexure P-6) passed by the learned Civil Judge (Jr. Div.), Patiala dismissing the application filed by the petitioners/plaintiffs under Order 6 Rule 17 CPC for amendment of the plaint.
[2] Brief facts of the case leading to the filing of the instant revision petition are that the petitioners/plaintiffs are the minor children and widow of Rajeev Inder Singh @ Pawandeep. For ready reference, Pedigree table is reproduced as under:-
1 of 25 ::: Downloaded on - 26-12-2018 03:18:22 ::: CR No.7422 of 2017 (O&M) [2] Bishan Singh Jagat Singh Basant Kaur (wife) (died in 1940) (died in 1970) Satwant Sikander Surinder Bhupinder Mohinder Dhanwant Ranjit Dhaninder Raghubir Singh Kaur Singh Kaur Kaur Kaur Kaur Singh (died on (Def. No.1) (died on 1.1.2000) Sept. 1979) Poonam Selina Rajeev Inder Singh @ Pawandeep Dhawan (Def. No.2) (died on 20.11.2011) (Def. No.3) Simrat Randhawa Tanvir Singh Mehtab Singh Mehar Bal (plaintiff No.4) (plaintiff No.1) (plaintiff No.2) (plaintiff No.3) [3] The petitioners/plaintiffs filed a civil suit against respondent/defendant Nos.1 to 6 seeking a declaration and permanent injunction qua properties situated in villages Nasirpur, Bir Bahadurgarh Tehsil and District Patiala; besides, village Sultanwind District Amritsar while claiming that the petitioners/plaintiffs and respondent/defendant No.1 were members of joint Hindu family to the exclusion of respondent/defendant Nos.2 to 6 and that the properties in question were Joint Hindu Family Ancestral co-parcenery property being succeeded from common ancestors.
[4] It is the claim of the petitioners/plaintiffs that their ancestors were allotted properties in villages Bir Bahadurgarh, Nasirpur, Shekhpura Kamboan, Chuharpur Kamboan and Saifdipur, Tehsil and District Patiala 2 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [3] and in village Sultanwind Tehsil and District Amritsar in lieu of properties in West Pakistan. House No.CC-162 Defence Colony, New Delhi was also mentioned in the plaint as Joint Hindu Ancestral Coparcenery Property. Written statement was filed on behalf of the respondents/ defendants on 11.07.2014 whereafter replication was filed on behalf of the petitioners/plaintiffs on 25.07.2014. Thereafter, issues were framed on 19.08.2014, besides order was passed dismissing application filed by the petitioners/plaintiffs under Order 39 Rule 1 and 2 CPC.
[5] Appeal was filed against order dated 19.08.2014 dismissing the application under Order 39 Rule 1 and 2 CPC on 20.09.2014 before the learned Additional District Judge (Patiala). Due to pendency of the case before the Appellate Court, the Civil Suit was adjourned before the learned trial Court on 09.10.2014, 20.11.2014, 09.01.2015, 16.02.2015, 08.04.2015 and 16.05.2015. Eventually on 28.05.2015 the learned Appellate Court passed an order in the appeal under Order 39 Rule 1 and 2 CPC partly allowing the petitioners/ plaintiffs application and directing the parties to maintain status quo regarding the possession of Farmhouse known as Nasirpur at Patiala. On receipt of the file on 24.07.2015 from the Appellate Court, the matter was adjourned by the learned trial Court for evidence to 08.09.2015. On said date application (Annexure P-7) was filed by the petitioners/plaintiffs under Order 14 Rule 1 and 5 CPC. Reply to the application under Order 14 Rule 1 and 5 CPC was not filed by the respondents/defendants on the adjourned date. In the meantime, the petitioners/plaintiffs filed a revision petition against order dated 28.05.2015 passed by the learned Additional District Judge, Patiala 3 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [4] granting status quo qua possession of Farmhouse known as Nasirpur at Patiala and the order was modified by directing status quo to be maintained regarding suit land by allowing the revision petition. It was further ordered that the parties were to conclude their evidence with each party being given 10 effective opportunities with a gap of one month. [6] Order dated 02.09.2015 (Annexure P-2) passed in the revision petition filed by the petitioners/plaintiffs was challenged by the respondents/defendants by way of SLP (C) No.32740 of 2015 and notice was issued on the same on 30.11.2015 (Annexure P-3). The matter came up before the learned trial Court on 18.01.2016, 04.03.2016, 27.04.2016, 07.05.2016, 20.07.2016 and 11.08.2016 but arguments were not addressed by either side on the application under Order 14 Rule 1 and 5 CPC nor was any further progress made in the case. On 16.09.2016 application under Order 14 Rule 1 and 5 CPC filed by the petitioners/ plaintiffs was dismissed with costs of Rs.500/-, besides the observations that the same had been filed merely to delay the proceedings. The case was adjourned to 29.09.2016 for remaining evidence of the plaintiffs. Thereafter, the petitioners/plaintiffs after availing three opportunities for leading evidence i.e. on 29.09.2016, 09.12.2016 and 10.01.2017 moved an application on 09.02.2017 under Order 6 Rule 17 CPC seeking amendment in the plaint. It also needs noticing here that although three opportunities had been availed by the petitioners/plaintiffs for leading evidence, yet no evidence had been led upto the date on which application under Order 6 Rule 17 CPC was filed by the petitioners/plaintiffs seeking amendment of the plaint. Notice was issued on the application for 08.03.2017, however, no reply was filed by the 4 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [5] respondents/defendants. Reply (Annexure P-5) to the application under Order 6 Rule 17 CPC was filed by the respondents/defendants on 05.04.2017. Thereafter, the case was adjourned to 29.04.2017, 17.05.2017, 25.07.2017 (wrongly mentioned as 17.05.2017), 31.07.2017, 10.08.2017 and 04.09.2017. A perusal of the zimni orders reveals that the adjournment was not on the sole request of the petitioners/plaintiffs but on account of arguments not being addressed/joint request. Eventually, vide impugned order dated 05.09.2017, the application for amendment of the plaint was dismissed on ground of delay/absence of due diligence in moving the application.
[7] Mr. Vikas Bahl, learned Senior Counsel assisted by Mr. Akshay Rawal, Advocate and Mr. Aditya Jain, Advocate contended that the impugned order has been passed without appreciating that the amendment prayed for was necessary for the just and proper adjudication of the case as also to avoid multiplicity of proceedings and that in the circumstances, the application could not have been rejected on the ground of delay/absence of due diligence and at best costs could have been imposed while allowing the application and making the proceedings time bound.
[8] Learned counsel further contended that this Court while allowing revision petition vide order dated 02.09.2015 (Annexure P-2) had granted ten effective opportunities to each party and the petitioners/plaintiffs had undertaken to conclude the evidence even after being allowed the amendment within the time already stipulated vide order dated 02.09.2015. Only three opportunities had been availed by the petitioners/plaintiffs till the date of filing of application under Order 6 5 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [6] Rule 17 CPC. Besides, the evidence of the petitioners/plaintiffs had yet to be led and case was fixed for said purpose only, therefore, no prejudice whatsoever would be caused to the respondents/defendants. [9] Learned counsel contended that a Bench of three Judges of Hon'ble the Supreme Court in Surender Kumar Sharma vs Makhan Singh, 2009 (10) SCC 626 held that amendment which was necessary for the just adjudication of the case could be allowed at any stage while in Sajjan Kumar vs Ram Kishan, 2005 (13) SCC 89 amendment was allowed even at the final stage of arguments, although objection had been taken in the written statement that property, amendment in respect of which was sought had not been properly described in the plaint. Reliance was also placed on the decision in Usha Devi vs Rijwan Ahamd and others, 2008 (3) SCC 717 wherein application for amendment moved two years after framing of the issues was allowed by Hon'ble the Supreme Court although objections with regard to the description of the property claimed in the plaint had been taken in the written statement itself, after taking into account its earlier decision in Ajendraprasadji N. Pande and another vs Swami Keshavprakeshdasji N. and others, 2006 (12) SCC 1 and Sajjan Kumar's case (Supra). By relying on the decision of Hon'ble the Supreme Court in Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006 (4) SCC 385 it was contended that merits of the amendment prayed for could not be gone into at the stage of considering the application for amendment and further that merely change in the relief prayed for would not impact on the decision to be taken with regard to whether the amendment was to be permitted or not. Reliance was next 6 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [7] placed on the decision of this Court in Col. Satwant Singh v. Smt. Uma Bakshi, 2009 (1) PLR 560 to contend that in the said case suit for permanent injunction had been permitted to be converted into suit for specific performance by amendment of plaint although issues had been framed in the case.
[10] Learned counsel further by relying on the decision of Hon'ble the Supreme Court in Mohinder Kumar Mehra vs Roop Rani Mehra and others, 2018 (2) SCC 132 contended that in said case amendment had been allowed so as to incorporate a property in a suit for title even though the same had initially been omitted to be mentioned in the plaint by rejecting the plea of limitation on the ground that the issue with regard to limitation was a mixed question of fact of law and could be taken up in the written statement and decided by the trial Court only after taking evidence into consideration. Learned Counsel further contended that in the said case the respondents therein had taken the plea that the amendment could not be allowed as the trial of the suit had already commenced and the plaintiff had failed to show that in spite of due diligence he could not raise the matter earlier. However, Hon'ble the Supreme Court allowed the application for amendment by observing that the object and purpose of proviso to Order 6 Rule 17 was that once the parties had proceeded with the leading of evidence, no new pleadings should be permitted to be introduced. But, since no evidence had been led till the filing of the application of the amendment and only adjournments had been sought after the framing of issues, the defendant in no manner could be said to be prejudiced by the amendments. Relevant extract of the same is reproduced as under:-
7 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [8]
13. The Proviso to Order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that the plaintiff's case is that parties has led evidence even on the amended pleadings and plaintiff's cases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him.
18. In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.
8 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [9]
19. While considering the prayer of amendment of the pleadings by a party, this Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragraphs 20, 21 and 22, which is quoted as below:-
"20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be re- fused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.
22. In Jai Jai Ram Manohar Lal v. National Building Material Supply, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations."
[11] Lastly learned Counsel for the petitioner relied on the decision of a Division Bench of this Court in Mohinder Singh (died) and Rep. by his LRs and another vs Kashmira Singh, 1985 PLJ 82 to contend that no period of limitation was prescribed under the Limitation Act, 1963 9 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [10] for filing a suit for possession on the basis of inheritance and that a suit for possession on the basis of title was governed by Article 65 of the Limitation Act, 1963. Learned Counsel contended that contended that in said case suit for possession of 1/3rd share on the basis of inheritance had been filed 20 years after the accrual of cause of action and the Hon'ble the Division Bench in the light of Article 65 of the Limitation Act held that no period of limitation was prescribed for filing a suit for possession on the basis of inheritance and it was for the defendant to show that his possession had become adverse to that of the plaintiff for a period of 12 years and it was from the point of time of the possession of the defendant becoming adverse to the interest of the plaintiff that limitation would begin to run and the aforementioned aspect of the matter could only be decided on the basis of evidence. [12] Thus submission of learned Senior Counsel for the petitioner is that the application has to be considered in the background of whether the amendment prayed for was necessary for the just and proper adjudication of the case as also to avoid multiplicity of proceedings and further that merit of the amendment prayed for was not a relevant consideration for deciding as to whether the amendment prayed for was to be allowed or not as it would always be open to the respondents/defendants to raise their objections with regard to the amended plaint by making any corresponding amendment in their written statements and mere change in the relief prayed for would not impact on the decision with regard to whether the amendment was to be permitted or not as the same would not change the nature of the suit and lastly, that amendment could not be opposed on the plea of limitation since the issue 10 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [11] with regard to limitation was a mixed question of fact and law and could be taken up in the written statement and decided only after leading evidence.
[13] Per contra, Mr. Sumeet Mahajan, learned Senior counsel assisted by Mr. S.S. Momi, Advocate and Mr. Amit Kohar, Advocate appearing on behalf of respondents/defendants contended that a well- reasoned order had been passed by the learned trial Court rejecting the application for amendment on the ground that firstly the petitioners/plaintiffs were aware of the property in respect of which amendment was sought, secondly, no explanation had been given as to why the claim for the property now sought to be incorporated by way of amendment had not been mentioned in the plaint itself. [14] Learned counsel contended that the claim in the amendment was qua property which was initially owned by Basant Kaur who died in the year 1970 in villages Shekhpura Kamboan, Chuharpur Kamboan Tehsil and District Patiala, therefore, the application for amendment making claim with respect to the property of Basant Kaur was barred by limitation on account of having been moved 47 years after the accrual of cause of action i.e. the death of Basant Kaur i.e. the day on which succession opened after her death in the year 1970, while second property in respect of which claim was sought to be made by way of amendment was purchased by respondent/defendant No.2 by registered sale deed from one Santokh Singh on 17.03.1978.
[15] Learned counsel further contended that Delhi property in respect of which application has been moved for amendment so as to incorporate the same, was purchased by Sikander Singh vide registered 11 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [12] Sale deed dated 12.12.1967 and in respect of which it was categorically mentioned in the plaint that the petitioners/plaintiffs reserved their rights to take appropriation action in respect thereto in accordance with law. [16] Learned counsel further contended that in view of well- settled law, trial in the case commenced with effect from the date of framing of issues, therefore, proviso to order 6 Rule 17 CPC would come into play and amendment prayed for could not be permitted on account of want of due diligence on the part of the petitioners/plaintiffs as envisaged in the proviso to Order 6 Rule 17 CPC especially in the background of three opportunities having been availed by the petitioners/plaintiffs for leading evidence and prior thereto application under Order 14 Rule 1 and 5 CPC as filed by the petitioners/plaintiffs having been dismissed by the learned trial Court with the observations that the same was nothing except an attempt to delay the proceedings.
[17] Learned counsel for respondents/defendants contended that repeated applications were filed to scuttle the order of the High Court as also to delay the suit with a mala fide intention in view of respondent/defendant No.1 being 89 years of age. Learned counsel contended that apart from the application under Order 14 Rule 1 and 5 CPC, five other applications were filed out of which application dated 10.10.2017 under Order 11 Rule 12 and 14 CPC was disposed of vide order dated 03.11.2017 with the observations that the application was to linger on the proceedings and disobey the order of the High Court, application dated 01.12.2017 for reconsideration of order dated 03.11.2017 was also dismissed by the learned trial Court vide order dated 22.12.2017. Application dated 27.02.2018 under Order 18 Rule 3 CPC 12 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [13] was dismissed vide order dated 23.08.2018 while application dated 30.08.2018 under Section 65 of the Evidence Act was also dismissed vide order dated 11.09.2018. Application dated 18.09.2018 for admission and denial of documents was pending and was yet to be decided while application (Annexure P-7) under Order 14 Rule 1 and 5 CPC was dismissed vide order dated 02.09.2016. Application dated 09.04.2016 under Order 6 Rule 17 CPC was dismissed by the learned trial Court vide order dated 05.09.2017.
[18] Learned counsel further contended that the entire thrust of the arguments of learned counsel for the petitioners/plaintiffs was in the background of case law which pertained to permission to amend misdescription of the property and not to include a claim for a property which had been omitted to be mentioned.
[19] Learned counsel contended that prayer had also been made in the application for amendment to contend that in case the learned trial Court came to the conclusion that the petitioners/plaintiffs were not in possession of the properties claimed by way of amendment then a decree for possession be passed in respect thereto. Learned counsel contended that the prayer made itself revealed that the properties in question were purchased by Basant Kaur and Sikander Singh in the year 1970 and even prior thereto and in the light of prayer for a decree for possession, it was apparent that the petitioners/plaintiffs were fully aware that the possession of the property claimed qua Basant Kaur and Sikander Singh was not in their possession, therefore, prayer had been made for a decree of possession being granted in their favour. Thus, the amendment 13 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [14] prayed for altered the basic structure of the suit, therefore, was not permissible.
[20] By relying on the decision of Hon'ble the Supreme Court in Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others, 2013 (9) SCC 485 learned counsel contended that as the petitioners were aware of the property qua which amendment was sought but had taken no steps to incorporate details in respect thereto in the plaint itself, such a belated amendment could not be allowed. By relying on the decision of Hon'ble the Supreme Court in Chander Kanta Bansal vs Rajinder Singh Anand, 2008 (5) SCC 117 learned counsel contended that amendment prayed for could not be allowed unless the Court came to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of the trial and further by relying upon the decision of Hon'ble the Supreme Court in Union of India vs Pramod Gupta (D) by LRs and others, (2005) 12 SCC 1 it was contended that delay and laches on the part of the parties to the proceedings was also a relevant factor while deciding the application for amendment. Learned counsel further by relying upon the decision of Hon'ble the Supreme Court in Ashutosh Chaturvedi vs Prano Devi and others, 2008 (15) SCC 610 contended that as a rule the Court would not permit amendment if a fresh suit on the prayer for amendment would have been barred by limitation on the date of application and that in such a case the only remedy available to the appellant would be to file a suit but the if same was barred by limitation then the Court would not exercise its discretionary jurisdiction to allow amendment of the plaint.
14 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [15] [21] Learned counsel for the respondents further contended that the decision in Surender Kumar's case (Supra) had not taken into account the aspect of due diligence, whereas the aforementioned aspect of the matter had been held to be an essential requirement to be established by the parties seeking amendment in terms of decision in Ajendraprasadji's case (Supra).
[22] Learned Counsel contended that the judgment of Hon'ble the Supreme Court in Mohinder Kumar Mehra's case (Supra) was not applicable as in said case amendment had been allowed in the backdrop of petitioners/plaintiffs therein having taken up the stand that they had disclosed the list of properties to their counsel but the counsel had not incorporated the same in the plaint and that on coming to know about the omission they had moved an application under Order 6 Rule 17 CPC whereas the same was not the position in the instant case as it is not the stand of the petitioners/plaintiffs herein that they had informed the details of the property to their counsel who had omitted to mention the same in the plaint.
[23] In rebuttal, to the plea that trial commenced w.e.f. the date of framing of issues, learned counsel for the petitioners/plaintiffs contended that in respect thereto in view of the decision of Hon'ble the Supreme Court in Mohinder Kumar Mehra's case (supra) it is the date of filing of affidavit in lieu of examination-in-chief of the witness which would be the point of time when it could be said that the trial had commenced for the purpose of considering application for amendment and in the instant case evidence had not been led as on date of filing of application for amendment.
15 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [16] [24] As regards the plea of learned counsel for the respondents/defendants that no reason was given in the application for seeking amendment, learned counsel for the petitioners/plaintiffs by relying upon the decision in Surender Kumar's case (Supra) and Sajjan Kumar's case (Supra) contended that in the said cases objection with regard to mis-description of the property had been taken in the written statement but the application for amendment was moved at the stage of arguments and was allowed on the ground that the amendment was necessary without going into the question as to whether any reason had been given as to why the aspect in respect of which amendment was claimed had not been mentioned in the plaint initially or at an earlier stage. Learned counsel contended that the sine qua non for allowing an application of amendment was whether the amendment was necessary for resolving the controversy between the parties to the suit as also to avoid multiplicity of proceedings, besides, the objection as raised by learned counsel for the respondents/defendants was not the basis for passing of the impugned order.
[25] Learned counsel further contended that in fact one of the reasons which impelled the petitioner to seek amendment was the observation made by the trial Court in order dated 19.08.2014 dismissing the application under Order 39 Rule 1 and 2 read with Section 151 CPC that no right had been claimed by the petitioners/plaintiffs qua the property in villages Shekhpura Kamboan, Chuharpur Kamboan and Saifdipur, Tehsil and District Patiala although the names of the villages had been mentioned in the plaint.
16 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [17] [26] In response to the plea of limitation based on the decision of Hon'ble the Supreme Court in Ashutosh Chaturvedi's case (Supra), learned counsel for the petitioners/plaintiffs on the basis of decision of Hon'ble the Supreme Court in Mohinder Kumar Mehra's case (Supra) contended that the question whether the claim could be held to be barred by time could only be decided after considering evidence to be led by the parties and that in the instant case, Article 65 of the Limitation Act would be applicable which provided a period of limitation of 12 years from the date the possession of the defendant becomes adverse to the plaintiff as per decision in Mohinder Singh's case (supra). [27] Learned counsel further contended that three of the petitioners/plaintiffs were minors and even as on date, two were minors while one of the petitioners/plaintiffs was a widow, therefore, since the claim was with regard to co-parcenary property in the petitioners/plaintiffs own individual rights, therefore, even otherwise, as per Section 6 of the Limitation Act, limitation qua the minors with regard to the claim for co-parcenary property would begin to run only from the date of their attaining majority and they could file a suit within a period of three years thereafter.
[28] I have considered the submissions of learned counsel for the parties and with their able assistance have gone over the record. The application for amendment of the plaint was dismissed on ground of delay/absence of due diligence in moving the application. [29] Admittedly, civil suit filed by the petitioners/plaintiffs against respondent/defendant Nos.1 to 6 sought a declaration and a permanent injunction qua property situated in village Nasirpur, Bir 17 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [18] Bahadurgarh Tehsil and District Patiala, besides, village Sultanwind District Amritsar while mentioning in the plaint that the petitioners/plaintiffs and respondent/defendant No.1 were members of Joint Hindu Family to the exclusion of respondent/defendant Nos.2 to 6 and that the properties in question were Joint Hindu Family Ancestral Co-parcenery Property being succeeded from common ancestors. Although all the villages in which the property was allotted were mentioned in the plaint i.e. in paragraph Nos.2 (i) and 7 but details of property in respect of which application for amendment has been moved was not mentioned in the plaint, consequently, nor in the relief claimed. [30] Since, the claim to property is on the ground of the same being Joint Hindu Family Ancestral Co-parcenery Property and the details of villages in which the properties were allotted in lieu of the property in West Pakistan having been mentioned in the plaint it emerges that the amendment prayed for is necessary for the just and proper adjudication of the real controversy in question as also to avoid multiplicity of proceedings since the civil suit was for the Joint Hindu Family Ancestral Co-parcenery Property as per entitlement. Merit of the amendment prayed for as per settled law is not a relevant consideration for deciding as to whether the amendment is to be allowed or not. Nor can it be said that in the facts and circumstances of the case, the nature of the suit would be changed for the suit filed seeking declaration and permanent injunction qua the Joint Hindu Family Ancestral Co-parcenery Property would remain the same.
[31] As regards the plea that in view of prayer for amendment on the ground that in case the learned trial Court came to the conclusion that 18 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [19] the petitioners/plaintiffs were not in possession of the properties claimed by way of amendment then a decree for possession be passed in respect thereto would alter the basic structure of the suit it needs noticing here that in Jeet Singh alias Ranjit Singh v. Baboo Singh (died) represented through his LRs, 1997 (3) RCR (C) 676, it was held that where the Court came to the conclusion that the defendant was in possession of the suit property and a decree of perpetual injunction does not entitle the decree-holder to possession, then the Court ought to have required the plaintiff to amend the plaint for seeking relief of possession as an alternative plea. In the circumstances, the matter was remanded by the Appellate Court to the trial Court to permit the plaintiff to amend the plaint and permission was also granted to adduce evidence. [32] Likewise in Karnail Sinigh v. Sohan, 2000 (4) RCR (C) 635 suit for declaration was filed by the plaintiffs contending that they were owners in possession, however, the trial Court dismissed the suit after holding the plaintiffs to be owners by stating that they were not in possession. In appeal, application under Order 6 Rule 17 CPC for amendment was filed to make alternative prayer for possession. Although the First Appellate Court dismissed the application, Hon'ble the High Court allowed the said amendment even though it had been moved at a highly belated stage i.e. after 9 years. It was observed that the suit was based on title and the same would advance the cause of justice. [33] Likewise, in Sukhwinder Singh v. Jasbir Kaur and others, 2013 (13) RCR (C) 629 application for amendment seeking alternative prayer for recovery of possession was declined by the learned trial Court in a suit which had been filed by the plaintiff initially for 19 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [20] declaration that he was owner in possession of the property. However, the prayer was allowed by the High Court by observing that the alternative prayer made by the plaintiff for seeking amendment was most appropriate and just.
[34] As regards the plea of the property of Basant Kaur and Sikander Singh being self-acquired property, paragraph Nos.1, 2 and 8 of the plaint reveals the specific claim of the petitioners/plaintiffs that the entire property was Joint Hindu Family Ancestral Co-parcenery Property and the property in all the villages including the villages which were sought to be added was allotted in lieu of the land of the predecessor of the petitioners/plaintiffs in West Pakistan. It was also mentioned that the transfer made in favour of respondent/defendant No.1 Surinder Kaur was in respect of Joint Hindu Family Ancestral Co-parcenery Property to save the same from being declared surplus and was without consideration and not for legal necessity. Likewise, one property in favour of Selina (i.e. respondent/defendant No.2) was by virtue of sale deed dated 17.03.1978 and respondent/defendant No.1 now being approximately 55 years of age, in the year 1978, was approximately 15 years of age. On the aforementioned basis, it is contended that the entire property was Joint Hindu Family Ancestral Co-parcenery Property and the other property which was made was from the joint nucleus. However, that aspect of the matter need not hold this Court as the same is a matter of evidence and merit which as per settled law is not to be seen at the time of deciding the application for amendment in view of decision in Usha Devi v. Rijwan Ahamd and others, 2008 (1) RCR (C) 840, Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006 (2) RCR (C) 577 and 20 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [21] Mohinder Kumar Mehra v. Roop Rani Mehra and others, 2018 (2) SCC 132.
[35] As regards the plea that the application for amendment is one of the applications being filed to delay the proceedings on mala fide considerations in view of respondent/defendant No.1 being 89 years old it needs noticing that respondent/defendant No.2 is claimed to be approximately 55 years of age, respondent/defendant No.3 approximately 60 years of age, respondent/defendant No.4 approximately 59 years of age whereas the petitioner/plaintiff No.1 to 3 were minors at the time of the institution of the suit and out of whom, petitioner/plaintiff Nos.2 and 3 are still minors while petitioner/plaintiff No.4 is a widow and since the petitioners/plaintiffs have to prove that the property in question is Joint Hindu Family Ancestral Co-parcenery Property detailed evidence is required to be led by the petitioners/plaintiffs. Thus, loss of opportunity to the petitioners/plaintiffs to lead evidence would result in irreparable loss to the petitioners/plaintiffs.
[36] The plea that different applications had been moved to delay the proceedings also stands negated from the submissions of learned Senior Counsel for the petitioners/plaintiffs who contended that on the date when the application dated 09.02.2017 under Order 6 Rule 17 CPC was moved only one application had been filed by the petitioners and that as per 'zimni' orders dated 09.10.2014, 20.11.2014, 09.01.2015, 16.02.2015, 08.04.2015, 16.05.2015 and 24.07.2015, no proceedings took place before the learned Civil Judge (Jr. Division), Patiala on account of file having been requisitioned by the learned Appellate Court whereas one date i.e. 13.10.2015 was sought by the respondents/defendants for 21 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [22] filing reply to the application filed by the petitioners under Order 14 Rule 1 CPC and six dates i.e. 18.01.2016, 04.03.2016, 27.04.2016, 17.05.2016, 20.07.2016 and 11.08.2016 were taken by the counsel for the parties for addressing arguments on the application under Order 14 Rule 1 CPC and further only three effective dates for leading plaintiffs' evidence had been given before the application under Order 6 Rule 17 CPC was filed although Hon'ble the High Court had granted ten effective opportunities and that out of the various applications referred to by learned counsel for the respondents all application except the application under Order 14 Rule 1 CPC were of a date subsequent to the date of filing of application under Order 6 Rule 17 CPC and all except two were after the date of passing of the impugned orders, therefore, could not justify the passing of the impugned order. Thus, the plea of respondents claiming the application to be a dilatory tactic is without merit. [37] As regards the plea that the claim regarding the properties sought to be added by way of amendment is barred by limitation the same cannot be decided by the Court while deciding the amendment application and the same is to be decided by the trial Court after taking evidence into consideration as limitation is a mixed question of fact and law. It is pertinent to refer to the decision of Hon'ble the Supreme Court in Mohinder Kumar Mehra's case (Supra) as in the said case the application for amendment was allowed by holding that the question of limitation was to be seen during the trial. Although in the said case, Article 110 of the Limitation Act was in question where period of Limitation was 12 years from the date the exclusion became known to the plaintiffs. However, in the instant case, Article 65 of the Limitation Act 22 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [23] is in question and in such a situation in view of decision of Division Bench of this Court in Mohinder Singh (died) and Rep. by his Lrs. And another v. Kashmira Singh, 1985 PLJ 82, there would be no limitation in the kind of civil suit filed by the petitioners/plaintiffs unless the respondents/defendants showed that their alleged possession was adverse for 12 years to the petitioners/plaintiffs. At any rate the aforesaid issue is a matter of trial and parties would be at liberty to lead evidence in respect thereto. Even otherwise, the petitioner/plaintiff Nos.2 and 3 are still minors and as per Section 6 of the Limitation Act, limitation for filing a suit has not even commenced and even qua petitioner/plaintiff No.1 who turned major during the pendency of the civil suit, limitation cannot be said to have lapsed. [38] Regarding the plea on behalf of the respondents in the context of decision in Mohinder Kumar Mehra's case it needs noticing that in said case the amendment was allowed on the ground that despite the petitioners/plaintiffs therein having given the details of the property to their counsel, their counsel had omitted to make a mention of the same in the plaint. No doubt the same is strictly not the position in the instant case but the fact remains that a counsel is an agent of the parties to the suit besides, details of the villages have been mentioned in paragraph No.2 (i) and 7 of the plaint with regard to the villages in which property had been allotted to the ancestors of the petitioners/plaintiffs and respondent/defendant No.1 in lieu of the properties in West Pakistan. The prayer for amendment has also to be considered in the background of the fact that petitioner/plaintiff Nos.1 to 3 were minors and out of whom two are still minors while petitioner No.4 is a widow and if in the plaint the 23 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [24] villages in India in which land had been allotted in lieu of the land of the ancestors of the petitioners/plaintiffs and respondent/defendant No.1 in West Pakistan has been mentioned, then appropriate care ought to have been taken by learned counsel before the trial Court to have included description of the properties in said villages as also the relief qua all said properties since the petitioner/plaintiff Nos.1 to 3 were then minors out of whom petitioner/plaintiff No.2 and 3 are still minors while petitioner/plaintiff No.4 is a widow and could not be expected to have guided learned counsel with regard to the nuances of drafting. In the circumstances, I am of the view that the matter would be squarely covered by the decision of Hon'ble the Supreme Court in Mohinder Kumar Mehra's case (Supra).
[39] Another aspect of the matter is that the petitioners were impelled to seek amendment in view of the observations made by the learned trial Court in order dated 19.08.2014 dismissing the application under Order 39 Rules 1 and 2 read with Section 151 CPC that no right had been claimed by the petitioners/plaintiffs qua the property in villages Shekhpura Kamboan, Chuharpur Kamboan and Saifdipur, Tehsil and District Patiala although the names of the villages had been mentioned in the plaint. As has already been held that not only is the amendment prayed for necessary for the just and proper adjudication of the case but also to avoid multiplicity of proceedings and the respondents/defendants can be compensated by imposition of costs.
[40] Accordingly, in the light of the position as noted above, the Revision Petition is allowed. Impugned order dated 05.09.2017 24 of 25 ::: Downloaded on - 26-12-2018 03:18:23 ::: CR No.7422 of 2017 (O&M) [25] (Annexure P-6) passed by the learned Civil Judge (Jr. Div.), Patiala is set aside subject to payment of costs of Rs.25,000/-.
[41] Needless to mention the time schedule specified by the High Court as well as Hon'ble the Supreme Court shall be scrupulously adhered to.
(B.S. Walia)
December 18, 2018 Judge
amit
1. Whether speaking/reasoned : Yes/No.
2. Whether reportable : Yes/No
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