Punjab-Haryana High Court
Hari Singh vs Dalip Singh And Ors. on 22 April, 2002
JUDGMENT M.M. Kumar, J.
1. This is a civil revision directed against the order dated 21.11.2000 passed by the Additional District, Judge, Bhiwani dismissing the application filed by the plaintiff-petitioner for amendment of his plaint at the stage when his suit stands dismissed and the appeal is pending.
2. Brief facts of the case necessary to decide the issues raised in the present revision petition are that the plaintiff-petitioner has filed Civil Suit No. 431 of 1995 on 30.8.1995 seeking declaration to the effect that the plaintiff-petitioner and the defendant-respondents are owners in possession of the suit land being the sons and daughters of Smt. Balma. The claim was based on a registered will dated 27.9.1994. It was further claimed that the judgment and decree dated 1.8.1991 passed in Civil Suit No 586 of 1991 by the Sub Judge, 1st Class, Bhiwani and mutation No. 1015 dated 31.1.1994 sanctioned on that basis by fraud and misrepresentation are liable to be set aside. The suit of the plaintiff-petitioner was dismissed with costs. The plaintiff-petitioner therefore filed Civil Appeal No. 163 of 1997 challenging the judgment and decree dated 3.17.1997.
3. It is during the pendency of the appeal before the Additional District Judge, Bhiwani that an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure (for brevity, the Code) was filed by the plaintiff-petitioner for amendment of the plaint. By way of amendment, the plaintiff-petitioner intended to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 on the ground that by mistake the aforementioned judgments and decrees could not be challenged. In the reply filed by the defendant-respondents, it was asserted that both the judgments and the decree dated 26.10.1993 and 1.2.1995 were well within the knowledge of the plaintiff-petitioner and were also produced by him in the trial Court while leading his evidence. It was pleaded that apart from estoppel, by his act and conduct, those judgments and decrees could not be made the subject matter of challenge as the suit if filed on the date of the application under Order 6, Rule 17 of the Code, it would be hit by law of limitation. Therefore, the bar of limitation cannot be permitted to be ignored by allowing amendment and implying that the judgments and decrees were challenged on the date of filing of the original suit i.e. 30.8.1995. The Additional District Judge dismissed the application by relying upon a judgment of the Supreme Court in K. Raheja Construction Ltd. v. Alliance Ministries and ors., 1996(1) Civil Court Cases 80 and that order dated 21.11.2000 reads as under:-
"It is not disputed that the aforesaid judgments and decrees were within the knowledge of the plaintiff-petitioner and have been discussed in the original plaint, in evidence led by the plaintiff as well as in the judgment by the trial Court. The plaintiff has lost his case before the trial Court and now if he is allowed to challenge these judgments and decrees, which are apparently now time barred, also will reopen the case from the beginning. Since these documents were within the knowledge of the plaintiff-appellant, the amendment sought at this stage will amount to fill up the lacuna and to assist the plaintiff-appellant in improving his case. The amendment on account of mistake of the counsel in the lower court, which was already in his knowledge, cannot be allowed at the appellate stage. However, it has been held by the Hon'ble Supreme Court in case K. Raheja Construction Ltd. v. Alliance Ministries and Ors., 1996(1) Civil Court Cases 80 that if amendment of the pliant is allowed to defeat the valuable right of limitation accrued to the party, the same cannot be allowed."
4. 1 have heard Shri Arvind Moudgil, learned counsel for the plaintiff-petitioner and Shri Arvind Rajotia, learned counsel for the defendant-respondent No. 1 and have perused the record their assistance.
5. Shri Arvind Moudgil, learned counsel for the plaintiff-petitioner has argued that the findings recorded by the learned Additional District Judge, Bhiwani are vitiated inasmuch as it has been held by him that the judgments and decrees dated 26.10.1993 and 1.2.1995 were within the knowledge of the plaintiff-petitioner because both the judgments find mentioned in the plaint. According to the learned counsel a bare perusal of the plaint would show that there is no mention of both the judgments in the plaint which has been produced with C.M. No. 5141-CII of 2001. Therefore, it cannot be said that both the judgments were in the knowledge of the plaintiff-petitioner. He has further argued that delay in itself cannot constitute the basis for allowing an amendment under Order 6, Rule 17 of the Code. It is claimed by the learned counsel that the civil suit in which the judgment and decree dated 26.10.1993 was passed, in fact was filed by one Lekh Ram wherein the plaintiff-petitioner was impleaded as proforma defendant. He was proceeded against ex parte. It is further claimed that the plaintiff-petitioner as proforma defendant in that suit-was never served and, therefore, the question of his knowledge of passing the judgment and decree on 26.10.1993 would not arise. The judgment and decree dated 1.2.1995 was passed in the appeal. It has further been argued that the plaintiff-petitioner acquired knowledge of those judgments and decrees when he went to file the appeal from which the present revision petition has arisen.
6. Shri Arvind Rajotia, learned counsel for the defendant-respondent on the other hand urged that the judgment and decree dated 26.10.1993 and 1.2.1995 could not be challenged as the period of 3 years which is prescribed for challenging such judgments and decrees has expired. According to the learned counsel, no amendment can be allowed which on the date of filing of the application for amendment would not be within limitation if a suit is to be filed on that date. Therefore, the learned counsel argued that the order passed by the learned Additional District Judge refusing to incorporate the amendment to enable the plaintiff-petitioner to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 cannot be interfered with.
7. I have thoughtfully considered the respective submissions of the learned counsel for the parties and regret my inability to agree with the contentions raised by the learned counsel for the plaintiff-petitioner. It is clear from perusal of the plaint placed on record with C.M. No. 5141-CII of 2001 that no reference to the judgments and decrees dated 26.10.1993 and 1.2.1995 has been made, yet a perusal of judgment and decree dated 31.7.1997 passed by the Additional Civil Judge (Sr. Division), Loharu shows that the defendant- respondent has taken objection in his written statement asserting that the suit was hit by the principle of res judicata because Civil Suit No. 379 of 1991 was dismissed vide judgment dated 26.10.1993 which has been exhibited as Ex. D3. In paragraph 4 of the judgment which is subject matter of appeal before the additional District Judge (Which has been taken on record as Mark 'A'), the following observations have been made :-
"Written statement was filed by the contesting defendant, in which a number of preliminary objections were taken up to the effect that the plaintiff had no cause of action and no locus standi to file the suit, that the suit was hit by the principle of res judicata because earlier Lekh Ram, brother of the plaintiff had filed a civil suit No. 379 of 1991 which was dismissed vide judgment dated 26.10.1993 (Ex.D.3). Hari Singh, present plaintiff, was a proforma defendant therein. The appeal preferred by Lekh Ram etc. was dismissed by the court of ld. Additional District Judge, Bhiwani on 1.2.1995 vide judgment (copy Ex.D.4). Therein also the validity and legality of the judgment (Ex. D.1) and decree (Ex.D.2) passed in the civil suit No. 586 of 1991 was assailed. Thus he has not come to court with clean hands and the suit is liable to be dismissed with special costs."
Therefore, the first argument of the learned counsel for the plaintiff-petitioner is liable to be rejected that the judgments and decrees were not in his knowledge till the time the appeal in the Court of Additional district Judge was instituted. It is true that the Additional District Judge in his order has committed a mistake a mentioning that the judgments and decrees were discussed by the plaintiff-petitioner in his plaint whereas a reference has been made of the same in the written statement filed by the defendant-respondents. However, that mistake would not benefit the plaintiff-petitioner because his basic argument that he has no knowledge of the judgments and decrees stands defeated.
8. The impugned order, therefore, proceeds on the correct assumption that if the judgments and decrees dated 26.10.1993 and 1.2.1995 are allowed to be challenged, then it would be hit by the provisions of Limitation Act, 1963 as Article 59 of the Schedule of the Limitation Act, 1963 provides that to cancel or set aside a decree, a suit has to be filed within a period of 3 years from the date it has first become known to him. There is nothing on the record to show that the judgments and decrees dated 26.10.1993 and 1.2.1995 became known to the plaintiff-petitioner on a particular date and the application for amendment filed within 3 years of the knowledge. However, the version that it came to his knowledge when the appeal was filed in the appellate Court stands already falsified.
9. The judgment of the Supreme Court in the case of K. Raheja Constructions Ltd. (Supra) has been rightly relied upon by the Additional District Judge and is fully applicable to the facts of this case. Similar view has been taken by the Supreme Court in Vishwambhar and Ors. v. Laxminarayan (dead) through Lrs. and Anr., (2001)6 S.C.C. 163 and T.L. Muddukrishana and Anr. v. Lalitha Ramachandra Rao (Smt.), (1997)2 S.C.C. 611. The observations of their Lordships in T.L. Muddukrishana's case (supra) read as under-
"Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunctions filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected, under these circumstances, even by the date of filing of the application, namely, 5.11.1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint."
10. The principles laid down by the Supreme Court when applied to the facts of the present case, then no doubt is left that the amendment sought to be incorporated to enable the plaintiff-petitioner to challenge the judgments and decree dated 26.10.1993 and 1.2.1995 is time barred. Moreover, the amendment is sought at the stage when the suit of the plaintiff-petitioner has already been dismissed and a right in favour of the defendant-respondent has come into existence Allowing the amendment at such a stage could completely change the nature of the cause of action and would seriously prejudice the rights which have already accrued to the defendant-respondents. Therefore, for these additional reasons also, the amendment under Order 6, Rule 17 read with Section 151 of the Code could not be allowed. The order passed by the Additional District Judge does not suffer from any legal infirmity warranting interference of this Court under Section 115 of the Code.
For the reasons recorded about, this revision petition fails and is accordingly dismissed.