Punjab-Haryana High Court
Vijay Pal vs Smt. Chameli on 6 August, 2013
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 178 of 2013
Date of Decision : August 06, 2013
Vijay Pal
....Petitioner
Versus
Smt. Chameli
....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Sudhir Aggarwal, Advocate
for the petitioner.
Mr. S.K. Bawa, Advocate
for the respondent.
T.P.S. MANN, J.
The plaintiff has filed the present petition under Article 227 of the Constitution of India for challenging the order dated 30.10.2012 (Annexure P-3) passed by Civil Judge (Junior Division), Gurgaon dismissing his application for amendment of the plaint.
According to the petitioner, he filed suit for declaration that sale deed dated 10.9.2004 executed by him in favour of the defendant/respondent was illegal, null and void and not binding on his rights and for restraining the defendant from alienating or transferring the suit land in favour of any other person. The plaintiff claimed that he was co-owner in possession to the extent Satish Kumar 2013.08.13 12:38 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No. 178 of 2013 -2- of 1/4th share in the land measuring 57 kanals 15 marlas. He sold 12 kanals of land to the defendant for an amount of Rs.4,80,000/- vide sale deed dated 10.9.2004 but the amount of sale consideration was never paid by the defendant. During the pendency of the suit, the defendant was successful in taking possession of the suit land and for that reason the plaintiff filed the application for amendment of the plaint seeking relief of possession also in the suit.
The plea of the plaintiff was opposed by the defendant on the ground that the application for amendment of the plaint was filed after a long delay of about five years. Further, the defendant was in possession of the suit land since 10.9.2004.
Having heard counsel for the parties and going through the impugned order, this Court finds that though the plaintiff claimed to have been dispossessed on 24.4.2007 yet he filed the application under Order VI Rule 17 C.P.C. only on 4.5.2012. It is true that in the interregnum, the defendant had filed an application under Order VII Rule 11 C.P.C. for rejection of the plaint which application came to be disposed of on 7.3.2011 but that would not have restrained the plaintiff from filing an application for amendment of his plaint earlier.
Counsel for the plaintiff has relied upon judgments in Satish Kumar 2013.08.13 12:38 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No. 178 of 2013 -3- the cases of Smt. Pratibha Devi Vs. Shri Guru Arjan Dev Public School, Kartarpur, 2009(5) RCR (Civil) 814, Ram Parkash Vs. Kreshan Chand and another, 2012(1) Civil Court Cases 724, Bhu Deo Vs. District Judge, Etah and others, AIR 2007 Allahabad 29 and Bal Bhagwan Vs. Balbir Singh and others, 2012(189) DLT 258 to contend that the law of amendment is to be liberally construed and mere fact that there was delay in filing of the application for amendment of the plaint is no ground to reject the same.
There is no dispute with the proposition of law laid down in the aforementioned judgments. However, these judgments are not applicable to the facts and circumstances of the present case. According to the plaintiff though he had executed sale deed in favour of the defendant on 10.9.2004 yet the consideration was never passed on to him and for that reason the possession of the suit land remained with him. It was only on 24.4.2007 that the defendant was able to obtain possession of the suit land. The plea of the defendant is that the possession was delivered to him on 10.9.2004 itself when the sale deed was executed by the plaintiff in his favour. The filing of the application under Order VII Rule 11 C.P.C. by the defendant for rejection of the plaint on the ground of non-affixation of ad valorem Court fee which application was disposed of and the plaintiff made to affix Satish Kumar 2013.08.13 12:38 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No. 178 of 2013 -4- ad valorem Court fee indicates that the plaintiff was never in possession of the suit land after the execution of the sale deed. Instead of filing the suit for possession for which would have been required to affix the ad valorem Court fee, the plaintiff chose to file a simple suit of declaration and permanent injunction by claiming that he continued in possession of the suit land. For this reason also the plaintiff could not have been permitted to amend his plaint so as to seek relief of possession as the application under Order VI Rule 17 C.P.C. was filed after a period of more than five years from the date of alleged dispossession.
In view of the above, there is no merit in the revision, which is, accordingly, dismissed.
( T.P.S. MANN )
August 06, 2013 JUDGE
satish
Satish Kumar
2013.08.13 12:38
I attest to the accuracy and
integrity of this document
Chandigarh