Himachal Pradesh High Court
Pushpa Saini And Anr vs Chanda Devi on 23 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 435 of 2017
Decided on 17.9.2019
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Pushpa Saini and Anr. .....Petitioners/JDs
Versus
Chanda Devi .....Respondent/DH
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? 1
For the petitioners : Mr. Rupinder Singh Thakur, Advocate.
For the respondent : Mr. Janesh Gupta, Advocate.
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Sandeep Sharma, Judge (oral):
Being aggrieved and dissatisfied with order dated 18.8.2017, passed by the learned Civil Judge (Senior Division), Nahan, District Sirmaur, whereby an application filed by the petitioners-JDs (herein after referred to as "the JDs") under Order 6 Rule 17 CPC, seeking therein leave to amend the objections, came to be dismissed, JDs have approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, with a prayer to set aside aforesaid impugned order dated 18.8.2017 and to allow the application filed under Order 6 Rule 17 CPC.
2. Briefly, stated facts as emerge from the record are that in an execution petition bearing No. 2/10 of 2014 having been filed by the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 2respondent-DH (in short "the DH"), an application under Order 6 Rule 17 CPC, came to be filed on behalf of the JDs, seeking therein permission to .
amend the objections filed by them. JDs by way of application as referred herein above claimed that they being LRs of deceased Lajja Ram (original JD) were not aware of earlier litigation pending interse parties, factum whereof came to their knowledge after the death of their predecessor-in-interest Shri Lajja Ram. JDs further averred in the application that they after having acquired knowledge with regard to the pendency of litigation inter-se their predecessor-in-interest and DH, approached the DH for amicable settlement of the dispute. JDs further claimed that they with the intervention of the respectable members of the society settled the issue amicably with DH on 10.1.2016, but such fact with regard to compromise could not be pleaded by them in the objections filed to the execution petition on behalf of the DH. JDs further stated in the application that in terms of amicable settlement inter-se parties, sum of Rs. 1 lac was given to the DH for use of the path, who despite having received aforesaid amount, has filed execution of judgment and decree dated 28.11.1994 passed by the court below.
3. The aforesaid claim put forth by the JD in the application filed under Section 6 Rule 17 CPC came to be resisted on behalf of DH, who specifically denied factum, if any, with regard to the amicable settlement inter-se parties as well as receipt of Rs. 1 lac for the use of path.
::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 3The DH claimed that she has already filed a suit for recovery of Rs.
5,47,500/- against JDs. DH has further stated that JDs have concocted a .
new story with a view to grab the suit property and to overcome the judgment and decree passed by the Civil Court in favour of the Decree Holder, which otherwise has attained finality.
4. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned by the learned court below while rejecting the application filed Order 6 Rule 17 CPC filed by the JDs, this Court finds no illegality and infirmity in the impugned order and as such, same does not call for any interference. Explanation rendered on record by the JDs for not pleading the facts, now proposed to be pleaded by way of amendment, appears to be totally frivolous and contrary to the record because record clearly reveals that in the subsequent suit filed by the predecessor in interest of the JDs, DH had set up a case that controversy now sought to be raised in the instant suit stands already settled in the previous suit, wherein learned Civil Court vide judgment and decree dated 28.11.1994 passed in CS No. 15/1 of 1991, had restrained the predecessor in interest of JDs from causing any interference in the peaceful use of the path in question. Judgment and decree dated 28.11.1994 passed by the Civil court, which is now sought to be executed in the instant proceedings stands upheld till this court because admittedly RSA having been filed by the predecessor in interest ::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 4 of JDs, laying therein challenge to Judgment dated 28.11.1994 passed by the learned Additional District Judge, Sirmaur, Nahan, affirming aforesaid .
judgment dated 28.11.1994 passed by the Civil Court in CS No. 15/1 of 1991 was dismissed. Admittedly, no appeal or revision ever came to be filed either by the predecessor-in-interest of the JDs or JDs themselves in the superior Court of law. Moreover, as is clearly evident from the record that JDs herein were subsequently made party in the subsequent proceedings initiated at the behest of their predecessor in interest against the DH and as such, explanation rendered on record by the JD that they were not aware of the dispute inter-se DH and JDs, cannot be accepted being totally contrary to the record. It is also not in dispute that JDs herein were arrayed as party respondent in RSA No. 291/2005, after the death of original appellant Sh. Lajja Ram i.e. predecessor-in-interest of JDs.
5. Leaving everything aside, this Court is of the view that once factum with regard to compromise, if any, arrived inter-se parties never came to be placed on record in any of the proceedings as referred herein above, either initiated at the behest of the DH or JDs, prayer having been made on behalf of the JDs for incorporating factum with regard to compromise in the objection filed by them to the execution petition cannot be accepted. Though this Court is of the definite view that factum with regard to subsequent compromise, if any, is of no consequence as far as execution petition at hand is concerned, but even ::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 5 otherwise, no concrete evidence ever came to be led on record by the JDs suggestive of the fact that in terms of compromise, sum of Rs. 1 lac .
was paid to the DH. Moreover, there is nothing to refute the contention put forth by the DH that she has already filed suit for recovery of Rs.
5,47,500/- against the JDs, for obstructing and denying the use and enjoyment of the suit property and as such, there appears to be force in the argument of learned counsel for the DH that had parties entered into compromise as has been alleged in the application under Order 6 Rule 17, there would have been no occasion at all for the DH to file suit for recovery as referred herein above.
6. There cannot be any quarrel with the argument raised by Mr. Rupinder Singh Thakur, learned counsel or the JDs that objections to the execution petition can also be amended. Similarly there is no dispute that prayer for amendment can be allowed at any stage of the proceedings, but pleadings sought to be adduced or incorporated on record by way of amendment, must have some connection with the controversy. Facts intended to be brought on record by way of amendment in the instant case, if permitted, would change the complexion and nature of the entire case, which is not permitted under law. Moreover, no plausible explanation has been rendered on record for moving such application at this belated stage. As per JD, agreement was entered inter-se parties on 10.1.2016, whereas application came to be filed on 14.9.2016.
::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 67. In the instant case, JDs being LRs of original JD namely Lajja Ram, intends to bring out certain facts, which in no manner can .
be said to be material for just decision of the case, rather this Court having carefully perused material available on record is in agreement with Mr. Janesh Gupta, learned counsel for the DH that an application under Order 6 Rule 17 seeking therein permission to amend the objections came to be filed at a belated stage solely with a view to delay the proceedings. This Court finds from the record that judgment sought to be executed was passed in the year, 1994, but till date, DH has not been able to derive any benefit out of the aforesaid judgment because till 2015 matter remained pending with the higher courts, whereafter judgment as referred herein above, came to be upheld.
Execution petition was filed in the year, 2014 and after expiry of three years, when petition was ripe for final disposal, application for amendment of objections, which otherwise is frivolous, came to be filed. Allowance, if any, of the present application at this stage would definitely amount to sheer abuse of process of law and as such, this Court sees no infirmity with the impugned order passed by the court below.
8. Since there is no dispute with regard to proposition of law that objections to the petition can also be amended at any stage, this ::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 7 Court sees no reason to refer the judgments titled Mahila Ramkali Devi and Ors. v. Nandram (dead) through LRs and Ors, (2015) 13 SCC 132 .
and Amarjit Singh and Anr. V. Balkar Singh and Ors., 1989 Civil Court Cases 625 (P&H), relied upon by the learned counsel, because in these cases, it has been reiterated that objections to the execution petition can also be amended and prayer for amendment of pleadings can be made at any stage. No doubt, amendment to the pleadings can be made at any stage, but in that eventuality, it is always incumbent upon the applicant to show that despite due diligence, he/she was unable to plead the fact sought to be incorporated by way of amendment. Similarly, while considering such application, court is under obligation to see whether facts sought to be adduced on record by way of amendment would change the completion of the case or not, and, if it is so, such prayer cannot be acceded to. In the case at hand, nothing has been explained in the application for amendment that why despite due diligence, factum with regard to compromise, could not be adduced on record at the time of filing of the objections.
9. Consequently, in view of the above, this court sees no illegality and infirmity in the impugned order and as such, same is upheld and present petition is dismissed being devoid of any merits.
::: Downloaded on - 26/09/2019 12:59:13 :::HCHP 8Records of the case be sent back forthwith. Pending applications, if any, also stand disposed of accordingly.
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17th September, 2019 (Sandeep Sharma),
manjit Judge
r to
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