Punjab-Haryana High Court
Mamta Rani And Anr vs Dayawanti on 3 December, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.2385 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.2385 of 2011 Reserved on : 17.11.2014 Date of decision: 3.12.2014 Mamta Rani and another ....Petitioners Versus Daya Wanti ...Respondent CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. Vijay Lath, Advocate for the petitioners.
Mr. Arun Luthra,Advocate for respondent.
**** G.S.Sandhawalia J.
1. The challenge in the present revision petition filed by the plaintiffs/petitioners is to the order dated 17.3.2011 (Annexure P/5) whereby the trial Court has declined the application for amendment wherein the relief of possession had been claimed.
2. The reasoning given was that the plaintiffs were in knowledge of the facts from the date of filing of the suit and there was no due diligence in prosecuting the claim since the case was fixed for rebuttal and arguments.
3. Counsel for the plaintiffs/petitioners has vehemently contended that the suit was for declaration and the plaintiffs are owners and therefore, vide the said amendment the complete controversy would be decided interse the parties and placed reliance upon the judgment of the Apex Court in Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others 2006(4) SCC 385 and judgment of this court in Taranjit Kaur and others Vs. Navneet Kaur and others 2006(2) PLR 364 that merely on the ground of delay the application for amendment cannot be disallowed.
PRADEEP KUMAR ARORA
4. Counsel for the respondent on the other hand has justified the order 2014.12.04 14:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -2- **** and submitted that after framing of issues no application for amendment is to be entertained especially in the absence of due diligence.
5. A perusal of the paper book would go on to show that suit for declaration and partition by metes and bounds was filed on 15.10.2003 by the present petitioners against Daya Wanti (deceased), who was mother-in-law of petitioner no.1 and the paternal grand mother of petitioner no.2. In the suit a declaration was sought that being legal heirs of Navjeet Singh son of deceased defendant and of Piare Lal husband of Daya Wanti who died in the year 1999, the plaintiff had right of ½ share as property was joint Hindu family property. It is submitted that Piare Lal died on 28.9.2003 and the defendant was taking hasty steps to transfer the suit property i.e. House No.388, Phase 3-B-1 and Plot No.221, Phase 3-B-1, SAS Nagar, Mohali in the name of her nephew. In such circumstances they had filed a suit for injunction against her restraining from alienating the same. The said suit was resisted by Daya Wanti(deceased) defendant on the ground that the plaintiffs have been disinherited by Piare Lal during his life time and they had tried to get the injunction against the said property but had failed and therefore, would not be entitled as they were not coming with clean hands. The property was self acquired property of Piare Lal and he had built the house by investing his life time savings and arranging loan. The defendant had also disinherited both the plaintiffs from property and they were mis-stating the facts.
6. The application for amendment of plaint dated 4.2.2011 was filed under Order 6 Rule 17 CPC for relief of possession of the house and plot in question and also that plaintiff no.2 had become major and he was a legal heir of Piare Lal and Daya Wanti who died on 26.7.2007 in the meantime. By amending the paragraph of Court fee, it was further averred that Court fee of a sum ` 18000/- was affixed on the plaint. In reply to the application, the PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity objections were taken that the evidence had been closed and arguments have of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -3- **** also been heard and only judgment was to be pronounced and by moving this application de-novo trial was being sought which was a misuse of process of law. The facts mentioned were in the knowledge of the applicants at the time of filing of the suit and an application for amendment of the suit had been filed on 4.8.2008 and necessary amendments had been made and the present one could have also been incorporated in the first amendment. The issues had been framed and evidence was already been on record and even the Court fee of ` 18000/- was sought to be affixed on the amendment of the plaint wherein the earlier stand was that the plaintiff had no income and she may be allowed to file the suit as an indigent person. It was pointed out that Daya Wanti had further executed a will in favour of Sandeep Singh son of Malkiat Singh who was Piare Lal's brother's son. The proposed amendment would entirely change the complexion of the case and to the detriment of the respondent's interest which could not be allowed. Resultantly the impugned order was passed by noticing that an earlier amendment had been allowed in the year 2008 and thereafter parties have led evidence and when it had been concluded the present application has been filed.
7. After hearing counsel for the parties, this Court is of the opinion that the petitioners are not entitled for the amendment prayed for. It is to be noticed that as per the pleadings in the suit itself it has been specifically noticed that an earlier suit had been filed whereby injunction had been sought since the plea taken was that Piare Lal had died on 28.9.2003 and Daya Wanti was wanting to alienate the property. The injunction was declined which would be clear from the written statement (Annexure P/21) filed by the deceased defendant Daya Wanti at that point of time. On account of death of Daya Wanti the suit for declaration and partition was got amended in the year 2008 and parties continued to lead evidence. The relief of possession was never sought at that point of time inspite PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity of the fact that the petitioners were well aware that they were not in possession of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -4- **** of the property in question on account of earlier stand taken by them to get the relief of injunction.
8. The judgment relied upon in Rajesh Kumar Aggarwal's case (supra) lays down the principles of amendment and that rule of justice, equity and good conscious be kept in mind while exercising power of amendment in the larger interest of doing full and complete justice to the parties. It has further been held that the Court always gives leave to amend unless it is satisfied that the party applying was acting malafide. As discussed in the present case, it is apparent that the petitioners were well aware that they were out of possession and therefore, did not seek the relief of possession as they would be adversely affected in the injunction application. Thereafter also on the death of Daya Wanti they claimed the right for declaration they were owners and that the will in favour of Sandeep Singh was an act of fraud and having no effect on the right of the plaintiffs. The parties accordingly led the evidence on the issue regarding the right whether they were entitled for inheritance of property of Piare Lal and regarding the validity of will set up by Daya Wanti. They were well aware that at that point of time they were out of possession and did not chose to seek the relief of possession when they sought the amendment in 2008. In such circumstances, malafide intent is apparent, therefore, the judgment in Taranjit Kaur's case (supra) would not be applicable in view of the observations made by the Apex Court in Rajesh Kumar Aggarwal's case (supra).
9. The suit was allowed to proceed and as per the provisions of Order 6 Rule 17 CPC, amendment is not to be allowed after commencement of the trial unless there is due diligence. Reference can be made to the judgment of the Apex Court in Vidyabai and others Vs.Padmalatha and another (2009) 2 SCC 409 wherein it has been held that once the trial has commenced the Court has no jurisdiction to allow the amendment until due diligence is shown. In the PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -5- **** present case, the said aspect is lacking and neither any pleading regarding due diligence has been made nor could have been made in view of the facts mentioned above. In such circumstances observations of the Apex Court in Ajendraprasadji N. Pande & another Vs. Swami Keshavprakesh- dasji N. & others (2006) 12 SCC 1 would be appropriate wherein it has been held that for the grant of indulgence for amendment due diligence is necessary. The relevant observations read as under:-
52. 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.
53. 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 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.
54. 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 PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity commencement of trial or treating the filing of affidavit which is of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -6- **** 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).
55. The judgment of the High Court recording concession by counsel for the defendant reads thus:
"22. However, when one examines the facts of the case, and applies that the conduct of the defendants goes to show that the exercise, namely, filing of application Exh. 95, is directly in conflict with the object of the amendment, i.e. to adopt a dilatory tactic. It is admitted by learned senior Advocate appearing on behalf of the defendants that all the issues raised by way of proposed amendment in the written statement were taken before this Court in the Appeal from Order filed by the present defendant in the Civil Appeal filed before the Apex Court, in the Appeal. From Order in the second round before this Court and again in a special leave petition filed before the Apex Court in the second round. Hence the defendants can not plead absence of knowledge after exercise of due diligence. If this be the position the approach adopted by the trial Court can not be stated to suffer from any infirmity so as to call for intervention at the hands of this Court in a petition under Article 227 of the Constitution of India."
56. In the instant case, the appeal was filed in the second round on 09.10.2002 as could be seen from the dates and events mentioned in the counter affidavit. Special Leave Petition in this Court was filed on 07.07.2004. Additional written statement has been filed on 24.11.2005. Delay in filing the additional written statement from 09.10.2002 to 24.11.2005. From 09.10.2002, the matters sought to be introduced by defendant by way of additional written statement was known to defendant/appellant. The application in respect of additional written statement does not make PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -7- **** an unequivocal averment as to due diligence. The averment only reads as follows:-
"Under the circumstances, the facts which were submitted in the said Appeal from Order before the High Court and the facts which are now being submitted in the present application could not be submitted before this Court inspite of utmost care taken by the defendants."
57. The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
10. Similarly in Revajeetu Builders & Developers Vs. Narayanaswamy & sons & others 2009 (10) SCC 84, the Apex Court discussed the principles and noticed that it is to be taken into account whether an application for amendment is bonafide or malafide and only for legitimate and honest and necessary amendments Court is to allow amendment application. Recently the Apex Court has laid down the similar principles in J.Samuel and others Vs. Gattu Mahesh and others (2012) 2 SCC 300, which read as under:-
"20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing PRADEEP KUMAR ARORA 2014.12.04 14:30 I attest to the accuracy and integrity process. The term includes errors due to mechanical failure or slips of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -8- **** of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC 534, Ajendraprasadji N. Pandey and Another vs. Swami Keshavprakeshdasji N. and Others, Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117, Rajkumar Guraward (dead) through LRS. vs. S.K.Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364, Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409, Man Kaur PRADEEP KUMAR ARORA (dead) By LRS vs. Hartar Singh Sangha, (2010) 10 SCC 512. 2014.12.04 14:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.2385 of 2011 -9- ****
24. In the light of the above discussion, we are in entire agreement with the conclusion arrived by the Trial Court and unable to accept the reasoning of the High Court. Accordingly, the order dated 08.02.2011 passed in Civil Revision Petition No. 5162 is set aside.
25. The civil appeal is allowed with no order as to costs."
11. Accordingly, keeping in view the above principles, this Court is of the opinion that the impugned order does not warrant interference under Article 227 of the Constitution of India.
12. Accordingly, the present revision petition is dismissed.
3.12.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.12.04 14:30
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh