Himachal Pradesh High Court
Akshay Katoch & Another vs Jai Singh & Others on 12 January, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CIVIL MISCELLANEOUS PETITION NO. 10011 OF
2022 IN CIVIL MISCELLANEOUS PETITION
.
(MAIN) NO. 446 OF 2020
Date of decision: 12.1.2023
Akshay Katoch & another
...Applicants.
Versus
Jai Singh & others
...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Kulwant Singh Katoch,
Advocate.
For the Respondents: Ms Devyani Sharma, Advocate, for
non-applicant/respondent No.1.
None for non-applicants/
respondents No.4(a) to 4(f) & 5.
Non-applicants/respondents No.3 &
6 are ex-parte.
Vivek Singh Thakur, Judge
ORDER
This application (CMP No.10011 of 2022) has been preferred under Order 6 Rule 17 CPC read with Section 151 CPC for amending pleadings of application CMP(M) No. 446 of ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...2...
2020 for insertion of Para 3-A in application filed for condonation of 112 days' delay in filing main appeal RSAST No. 20700 of 2020.
.
2. Applicants are practicing Advocates. Applicant No.1 is son of applicant No.2. They are conducting this case in person. Applicant No.2 is appearing for both applicants i.e. for himself as well as his son/applicant No.1 being holder of his Power of Attorney.
3. Claim of applicants is that due to inadvertent mistake, applicants could not plead the facts, stated in proposed addition by way of para 3-A, because applicants were under impression that limitation period had already been extended by the Supreme Court, whereas these facts are necessary to be pleaded in application to adjudicate the point of controversy involved in application filed for condonation of delay as well as appeal with further submissions that application for amendment is bonafide one and without any malafide intention for the reasons that proposed amendment is necessary for purpose of determining the real question in controversy involved in appeal and addition of proposed para 3-A is not going to cause loss or prejudice to other parties.
4. Application for amendment has been opposed by appearing respondent on the ground that the same is malafide and applicants are proposing the amendment to ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...3...
place on record completely a new stand which is complete somersault from the earlier pleadings in CMP(M) No. 446 of 2020 and the proposed amendment is being prayed with a .
view to overcome the arguments made in the matter on behalf of respondent, which were recorded by the Court in its order dated 19.7.2022, wherefrom it is evident that facts proposed to be brought on record were never pleaded either in application or during arguments and applicants, who are active practicing Advocates, have failed to show as well as plead due diligence on their part for not incorporating these facts in application for condonation of delay.
5. It has been further submitted by learned counsel for contesting respondents that proposed amendment is neither explanatory nor amplificating the earlier version taken in application for condonation of delay but a new twist to the story has been given by cooking a false story which is not permissible under law.
6. Applicants, to substantiate their plea for allowing the amendment, have referred pronouncement of Punjab and Haryana High Court in case Gurnam Singh vs. Hari Mohan, reported in 2001(2) Civil Court Cases 175 (P&H); and also Paras 23 and 24 of judgment of the Supreme Court in Civil Appeal No. 5909 of 2022, titled Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, decided ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...4...
on 1.9.2022, by contending that equity of justice demands that to prevent the abuse of process of the Court, an amendment in terms as prayed should be allowed with further .
submissions that power to allow an amendment is undoubtedly wide and may be exercised in the interest of justice notwithstanding the provisions of law of limitation, and by awarding cost for inconvenience or expenses caused to the other side as the error is not incapable of being rectified so accrued.
7. Learned long as remedial steps do not unjustifiably injure rights counsel for contesting respondent, referring Para 70(x) of Sanjeev Builders' case supra, has contended that proposed amendment is going to change the entire earlier story predicated in the unamended application and shall be amounting to setting up an entirely new case, which is foreign to the case set up in original application, causing grave loss and serious prejudice to the vested rights accrued in favour of respondent and, therefore, injury likely to be caused to respondent cannot be compensated in terms of cost.
8. It is the case of applicants that judgment and decree sought to be assailed in Regular Second Appeal was passed on 26.11.2019, certified copy whereof was applied on 27.11.2019 and was prepared and attested on 11.12.2019 and ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...5...
received on 13.12.2019 and as such, appeal was to be filed on or before 10.3.2020. Reasons for not filing the appeal within time have been originally narrated in para 3 of CMP(M) No. .
446 of 2020 which are as under:-
"3. That applicants have drafted the above titled Appeal in the second week of March 2020 but inadvertently entire Country was lockdown due to Covid-19 and during Lockdown applicants neither came to their office nor could file the same before the Hon'ble Court resultantly there were delay of 112 days in filing the above titled Appeal and the same is due to the reason mentioned above which is beyond the control of applicants. Even otherwise Hon'ble Supreme Court of India pleased to extent the period of limitation due to Covid-19."
9. During hearing of CMP(M) No. 446 of 2020 on 19.7.2022, learned counsel for respondent No.1 had pointed out certain facts dis-entitling the applicants from condonation of delay in filing the appeal. Having no assertion to those points, learned counsel for applicants had sought time to look into the record and matter was adjourned on his request. Order 19.7.2022 reads as under:-
".........During hearing, it has been pointed out by learned counsel for respondent No.1 that though it is claimed by applicants that appeal could not be filed before 10th March, 2020 due to COVID-19 Pandemic, however, as evident from the record, appeal was prepared and signed alongwith applications on 9.3.2020 at Shimla and affidavits in support of applications were also attested by Oath Commissioner on 9.3.2020 at Shimla itself, but despite that appeal was not filed either on ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...6...
9.3.2020 or 10.3.2020 without any plausible reason refraining from filing the appeal and it has been filed on 3rd July, 2020. It has been further submitted that on 9th or 10th March, 2020 there .
was no lockdown in the country, rather there was complete lockdown after 23rd March, 2020 and during July, 2020 COVID-19 restrictions were in existence, but applicants did not file the appeal when there was no lockdown, but filed the appeal on 3rd July, 2020 without any plausible reason for doing so.
Faced with aforesaid situation, learned counsel for the applicants seeks time to look into the record. On his request, matter is adjourned....."
10. On 25th July,2022 applicants have filed present application with proposed amendments/insertion by adding para 3-A in application CMP(M) No. 446 of 2020. The proposed amendment Para 3-A reads as under:-
"3-A That Applicant had got attested the Appeal and Applications attached with Appeal on 09.03.2020 but on that day some sheets out of certified copy of impugned judgment and decree 26.11.2019 passed in Appeal No. 21-S/13 of 2013 were missing during process of its Photostate copies and due to that Appeal could not be filed on 09.03.2020 and thereafter Applicant has tried to trace the missing papers in Office, which were traced on 20.03.2020 due to that Applicant could not file Appeal after 10.03.2020 to 20.03.2020 but thereafter due to threat of Covid-19, Applicant could not appear before the Hon'ble Court as Applicant is coming from Solan and in the mean time lock down were imposed in Country. It is submitted that Applicant has filed Appeal during exemption period granted in lockdown but due to inadvertently mistake Applicant could not plead these facts in Application because Applicant was ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...7...
in the impression that limitation period had already been extended by the Hon'ble Apex Court."
.
11. In Application CMP(M) No. 446 of 2020 it has been claimed that appeal was drafted in second week of March, 2020 but entire country was under lockdown due to COVID-19 and during lockdown applicants neither came to their office nor could file the appeal in Court causing 112 days' delay in filing the appeal and reasons mentioned above i.e. lockdown due to COVID-19 was beyond the control of applicants and Supreme Court has been pleased to extend the period of limitation due to COVID-19.
12. Now applicants have proposed to add the facts as narrated in proposed addition by way of para 3-A quoted supra.
13. Now claim of applicants is that application attached with appeal was attested on 9.3.2020 but for missing of certain sheets out of certified copy of impugned judgment during process of photostat, appeal could not be filed on 9.3.2020 and these missing papers could be traced on 20.3.2020 but thereafter applicants could not file the appeal due to threat of COVID-19.
14. Only reason, in application for condonation of delay, for not filing the appeal within time has been stated to be lockdown due to COVID-19. In the application, there is not ::: Downloaded on - 12/01/2023 20:35:14 :::CIS ...8...
even a whisper about preparation of appeal, attestation of affidavit and missing of pages. No such plea was even taken during addressing the arguments on 19.7.2022 rather time .
was taken to look into the record. Therefore, proposed amendment is changing the story, putforth in CMP(M) No. 446 of 2020 originally, into entirely different story as earlier cause for not filing the appeal was attributed to lockdown due to COVID-19 but now cause of delay has been attributed about missing of certain pages of certified copy of impugned judgment and decree.
15. On perusal of record, it is apparent that appeal was prepared and signed on 9th March, 2020 and applications filed therewith are also dated 9.3.2020 and have been attested by Oath Commissioner in the High Court on 9th March, 2020 itself. As also pointed out by learned counsel for respondent No.1, the applications are placed and tagged after copies of impugned judgment and decrees with complete pagination of paper book in one go and there is no cutting, correction or re-pagination of paper book on account of addition of missing pages. Therefore, plea of respondent that appeal has been filed after waiting the expiry period of limitation with malafide intention and ulterior motive only to harass the respondent appears to be true. ::: Downloaded on - 12/01/2023 20:35:14 :::CIS
...9...
16. It is also noticeable that application under Section 5 of Limitation Act i.e. CMP(M) No. 446 of 2020 has also been prepared, signed and attested at High Court, Shimla on 9th .
March, 2020 which causes a serious doubt about bonafide and the contention sought to be incorporated by way of proposed amendment. Applicants are practicing Advocates. According to them, the appeal could not be filed on 9th March, 2020 as they noticed that certain pages of copy of impugned judgment and decree were missing. The application for condonation of delay has been drafted on the same day but no such plea has been taken therein. It is also noticeable that period of limitation was available till 10.3.2020 but application for condonation of delay has been attested one day prior to that, indicating that there was plan to cause delay and to file appeal with application for condonation of delay because for having no merit in appeal, there was possibility of rejection of appeal in limine. There cannot be any inadvertent mistake due to which the appeal could not be filed on the same day. Though there was no lockdown on 9th March, 2020 and in any case, applicants were present in High Court on 9th March, 2020, therefore, there was no occasion for them to say in application, being prepared on that day, that due to COVID-19 they could not file appeal within time.
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17. On one side applicants are claiming that they intended to file appeal on 9th March, 2020, but Court fee attached with appeal reflects that it was purchased at Solan .
on 20.5.2020.
18. From aforesaid facts and circumstances, it is apparent that applicants are hiding true facts from Court and trying to justify delay by way of padding which is contrary to earlier stand taken in application CMP(M) No. 446 of 2020. Even stand taken in CMP(M) No. 446 of 2020 is apparently not true. I am of considered opinion that proposed amendment is neither explanatory nor amplificatory but is an introduction of new story and thus prayer for amendment warrants rejection.
19. Considering the facts in entirety, it is also apparent that proposed amendment would change the nature of cause explained originally in CMP(M) No. 446 of 2020 entirely by setting up completely a new story. Therefore, I do not find any merit in application and accordingly application is dismissed.
Application stands disposed of.
January 12, 2023 (Vivek Singh Thakur)
(ms/sd) Judge
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