Punjab-Haryana High Court
Rohit Verma vs S.P Gupta And Anr on 6 September, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR-6017-2014 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.6017 of 2014
Date of Decision : 6.9.2014
Rohit Verma
.....Petitioner
Versus
S.P.Gupta and another
.....Respondents
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present : Mr.R.K.Gupta, Advocate
for the petitioner.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The petitioner is the plaintiff before the trial Court. He filed a suit for declaration against the defendants, respondents in this petition, to the effect that he is owner of 1K of agricultural land in the property described in the suit situate in village Tabar, Hadbast No.15, Tehsil and District Panchkula. The defendants are the owners of 1K of agricultural land in village Mauli, Hadbast No.16 of the same district. The plaintiff claims under a memorandum of understanding reached between the parties and reduced in writing in December, 2007 agreeing to exchange of land with one another and on the basis of, an injunction was sought restraining the defendants from interfering in the possession of the plaintiff over a passage carved out by the plaintiff in his land after the exchange. In terms of the exchange, a decree of possession is sought of PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :2:
agricultural land of the defendant in village Mauli. Ownership of land is claimed through exchange alone and the defendants are party to the MOU, have occupied the land accordingly and sunk a tubewell there and therefore there should be restrained from raising any construction in the suit land in village Mauli. It is pleaded that by virtue of paragraph 6 of the MOU the land of the defendant prior to signing MOU was 'directly got registered' in favour of the wife of the first defendant by intervention of the father of the plaintiff. The dispute is with respect to the passage. The suit was filed in May, 2009.
2. The defendants contested the suit by filing their written statement in December, 2009 in which they raised a preliminary objection to the effect that the MOU was not an exchange deed nor any agreement to exchange the land and was thus not admissible in evidence for want of registration and payment of stamp duty and has also not been executed by a person competent to do so. It was contended by the defendants that the plaintiff and his father were to purchase land falling in revenue numbers 29/521/312 comprised in 2K-14M of land situated beside the Highway adjoining the village Tabar land but the exchange was never pursued for more than a year of the MOU and therefore the exchange was not an accomplished fact. It is thus suggested that the same is not legally operative and governing the rights of the parties. It was denied that the plaintiff was not in possession of any passage and is thus not entitled to a decree of possession of land bearing Khasra No.10/25/1 of village Mauli which is owned by the defendant while the land at village Tabar is owned by S.P.Gupta and FPI Automation and others are not before the Court as PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :3:
also other owners who are necessary and proper parties but have not been joined in the proceeding.
3. The issues in the suit were framed by the court on 29th May, 2013 and the case was posted for plaintiff's evidence. Prior to recording of evidence of any of the plaintiff's witnesses, the plaintiff filed an application in August, 2013 under Order 23 Rule 3 read with Section 151 of the Civil PC for permission to withdraw the suit owing to formal defects with permission to institute a fresh suit in respect of the subject matter on the same cause of action. The plaintiff submits that the learned trial Court without calling for a reply to the application from the defendants rejected the application on 6th August, 2013 and re-fixed the case for 23rd August, 2013 for evidence of the plaintiff since the suit was an old one lingering on. The learned trial Court granted the defendants a special but last and final opportunity, failing which, their evidence would be deemed to be closed. On 23rd August, 2013, the plaintiff examined 7 witnesses by presenting their affidavits by way of examination-in-chief containing their deposition. Consequently, the cross-examination of the witnesses was deferred on the request of the learned counsel for the defendants and the case was adjourned to 10th September, 2013.
4. On the next date of hearing, the plaintiff filed two applications, one under Order 6 Rule 17 of the Civil PC for amendment of the plaint and the other for amending issue No.2 making an oral prayer at the hearing that the amendment deserves to be carried prior to cross- examination of the witnesses of the plaintiff. The plaintiff complains that he was directed to examine his witnesses prior to the consideration of the PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :4:
application for amendment of the plaint and re-framing of issue No.2 which led to the testimony of one witness being recorded and the cross- examinations of PW3 and PW4 not being completed due to paucity of Court time and therefore the case was adjourned to 30th September, 2013 for cross-examination. On 17th October, 2013, the defendants filed reply to the application for amending the plaint. The plaintiff did not take recourse to further remedies against the previous order and closed his evidence on 26th January, 2014 while the defendants went ahead and led their evidence and closed it on 26th February, 2014. Thereafter, the application for amendment of the plaint was dismissed vide order dated 14th March, 2014 against which the present petition has been filed belatedly on 22th, August, 2014.
5. In the application for amending the plaint under Order 6 Rule 17 CPC, the plaintiff's case was that while drafting the plaint, he had inadvertently and due to oversight and by a typographical error incorrectly written certain khasra numbers in the heading of the plaint not as per the revenue record and also failed to place the site plan placed on record along with the plaint, and in such circumstances he should be permitted to carry out changes in the khasra numbers and annex the site plan of the area in dispute. It was also pointed out that defendant No.2 had been incorrectly described as 'DPI' instead of 'EPI'. Since the defendants had raised an objection that necessary parties who were all owners of land thereabout were not impleaded the third defendant namely M/s Alcon Components Private Limited is also required to be arrayed among the defendants. It is the plaintiff's case that the amendments are PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :5:
formal in nature and deserve to be allowed for an understanding of the case and will not change the drift of the suit.
6. However, the learned Civil Judge (Senior Division), Panchkula by her order dated 14th March, 2014 has dismissed the applications. Learned trial Court has observed that the amendment in pleadings can be allowed only in order to determine the real questions in controversy arising between the parties and the Court has to be satisfied that in spite of due diligence the party could not have raised the matter before the commencement of the trial. To which it could be added; or at the best soon after the start and thereafter but at least before the issues were struck which in this case was rather inexplicably late in this case (2009-2013) to come of any help of the plaintiff. The Court a quo has noticed that the application was filed in the midst of the examination of the witnesses of the plaintiff.
7. By way of the proposed amendments, the plaintiff wants inter alia to introduce the third defendant Alcon in order to cover up the objection filed by the defendants in their written statement filed long back in 2009. In view of this, the court a quo has reasoned and quite rightly so that if the amendments are allowed at this stage it will result in a re-trial of the entire case which is impermissible and should be disallowed. The law suit is on the last legs of its journey and is on the verge of conclusion. The introduction of the third defendant at this belated stage is inappropriate without anything more shown in the application as to why they are necessary and proper parties for the just and proper adjudication of the suit for the court to pass a decree. If the PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :6:
plaintiff has any issues to settle with Alcon then he is free to take recourse to legal remedies. If he wants to introduce Alcon in the present litigation only to tide over the objection of the defendants, then the object of the exercise is put in doubt.
8. When the foundation of the suit is based on an exchange of land without any title passing, it was incumbent upon the plaintiff to have pleaded these facts to start with in the plaint or at least soon before the commencement of the trial. Furthermore, on the next question the description of the land in such a suit was of fundamental value and there should have been a site plan showing what the plaintiff wanted to with regard to the exchange of lands of the two villages so that the defendants could effectively answer those pleadings in their written statement upon which the trial could take place. But that was not done for too long making the prayer practically irreversible given the milestones set in the Code to achieve a decree. After four years of litigation and especially at the stage when the plaintiff has willy-nilly closed his evidence on his own and not by court order and without demur so far and the defendants have also led their evidence, then the plaintiff cannot change the entire rudder of the suit and ask the Court to embark upon a fresh trial starting from reception of an amended written statement etc.and if this were allowed it would dangerously and unnecessarily lead to avoidable multiple complexities and problems which would arise including resulting from striking fresh issues and to overwrite the evidence already recorded and from scratch. The evidence adduced on record by the parties cannot be rubbed off by any known legal eraser as they are PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :7:
depositions on solemn affirmation or oath duly recorded. Evidence once recorded in a court of law is sacrosanct and an opportunity of recall is always limited to new matter of which the opposite party is taken by surprise and therefore have a right to rebut. But what the plaintiff wants might lead to a carte blanche examination of existing witnesses making it very hard for court or counsel to separate the two during examination-in- chief and the cross-examination which is not worth the effort and to what end and why should this be done for the plaintiff is the moot point which calls for no judicial answer in this case.
9. Even otherwise the present petition has been filed after about five months of the passing of the impugned order which by itself is indicative of the negative conduct of the plaintiff in not approaching the Court within a reasonable time. Though limitation is not prescribed for petitions under Article 227 of the Constitution of India but delay and laches are factors which the Court on its revision side ought not to ignore as explained by me in CR 646 of 2014, Jasvir Singh v. M/s Curo India Private Ltd. rendered on 19th March 2014. There should at least be an explanation in the petition for the belated approach to this Court.
10. After closing his evidence in 2014 and allowing the defendants' evidences to be recorded and to be let it and be closed in February, 2014, the plaintiff cannot then complain that his application under Order 6 Rule 17 CPC was kept pending and decided posthumously on 14th March, 2014. If he was genuinely aggrieved by a non-decision then the plaintiff took no timely steps to correct his perceived wrongs either before the learned trial Judge by an application or this Court on its PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document CR-6017-2014 :8:
revision side. The right to seek an amendment in the pleadings was a personal right and if the plaintiff surrendered it and let time pass without remaining vigilant in pressing for a decision on the application before the evidence of both the parties had been adduced on record then on his failure to do so he would be deemed to have waived his rights, if any, by passage of time and delay in electing remedies, if he had any worthwhile. It is now rather late in the day for him to complain that there was occasioned an error of procedure in deciding the amendment application or a manifest failure of justice.
11. I would not for the above reasons interfere in this matter in exercise jurisdiction of administrative and judicial superintendence conferred by Article 227 of the Constitution which is neither original nor appellate. If the scope of section 115 CPC is curtailed by the Code of Civil Procedure (Amendment) Act, 1999 effective 2002 but that has not resulted in expanding the High Court's power of superintendence; [see, Shalini Shyam Shetty v. Rajendra Shankar Patil; (2010) 8 SCC 329]. Article 227 is also not meant to correct mere errors of law or fact or of procedure which have not resulted in a supreme miscarriage of justice or to empower interference just because another view than the one taken is possible I would then dismiss the petition in the main.
(RAJIV NARAIN RAINA) JUDGE September 6, 2014 Paritosh Kumar PARITOSH KUMAR 2014.09.10 11:50 I attest to the accuracy and integrity of this document