SANTOSH KUMAR v. DEVKOO DEVI — 1996 DIGILAW 121 (HP)

JUDGMENT P. K. Palli, J.—The abovesaid two appeals are proposed to be disposed of by a common judgment as the facts and points raised are common. 2. The undisputed facts that have come on record are that one Kahan Singh filed a suit against Devkoo Devi. This suit is numbered as 20/1 of 1989. The plaintiff therein sought a declaration to the effect that he is the owner in possession of the suit land measuring 6-3 Bighas by way of adverse possession and the defendant therein was sought to be restrained from interfering with the plaintiffs possession over the suit land. 3. In the written statement, the allegations made in the plaint were denied. It was denied that the plaintiff is in possession of the suit land as alleged by him. The defendant claimed the ownership of the suit land in him. It was denied that the defendant was interfering with the possession of the plaintiff as the suit land was in possession and ownership of the defendant. The plaintiff was alleged to be trying to take forcible possession of the suit land. 4. One more suit was filed and this one by Devkoo Devi against Kahan Singh which bears case No 22/1 of 1989 and in that suit, the plaintiff Devkoo Devi sought a declaration to the effect that the suit land is owned and possessed by the plaintiff The land covered in this suit is said to be measuring 62-8 Bighas which also includes the land covered by other suit i. e. suit No. 20/1 of 1989 In the written statement filed in the suit No. 22/1 of 1989, the defendant denied the allegations made in the plaint. It was denied that the plaintiff or her husband were in cultivating possession of the suit land and had planted an apple orchard. The defendant claimed to be in possession of 6-3 Bighas of land as held by him openly, peacefully and in the hostile manner to the knowledge of the true owner. He claimed himself to be the owner of the suit land by way of adverse possession. 5. Though the two suits were never consolidated, but have been disposed of by a common judgment and decree. 6. He claimed himself to be the owner of the suit land by way of adverse possession. 5. Though the two suits were never consolidated, but have been disposed of by a common judgment and decree. 6. The suit No. 20/1 of 1989 was decreed by the learned trial Court to the extent that the plaintiff is owner in possession of the suit property by way of adverse possession and consequently the defendant therein was restrained by a decree of permanent injunction from interfering with the possession of the plaintiff over the suit property. 7. The suit No. 22/1 of 1989 was also decreed by the learned trial Court for declaration to the effect that the plaintiff is owner in possession of the part of suit land and that the defendant was in possession of the other land comprising the other suit and had become owner of the same by way of adverse possession 8. Aggrieved against the judgment and decree passed by the learned trial Court, Devkoo Devi filed two separate appeals During the pendency of the appeals before the learned District Judge, Kahan Singh died and the present appellants claimed to have right, title or interest over the suit land on the strength of a will executed by him. The respondent Nos. 2 to 9 are said to be the legal representatives and according to the appellants in these appeal, there is no conflict of interest amongst them and the proforma respondents, i e. other legal representatives of late Kahan Singh 9. During the pendency of the appeals before the learned District Judge, an application was moved by Devkoo Devi, the plaintiff in the suit No 22/1 of 1989 to the effect that due to inadvertence, the relief of possession could not be claimed and since the defendant has been found to be in possession of the suit land, she be permitted to amend the plaint and incorporate relief of possession in the alternative This is, however, correct that the application was made only in Suit No. 22/1 of 1989 which was filed by her as plaintiff against the father of the present appellants and no such application was moved in the other suit i e Suit No 20/1 of 1989, Vide order dated 27th September, 1995, presently impugned in both these appeals, the learned District Judge allowed the application and remanded the case back for afresh decision. This order was made in the appeal arising out of the Suit No. 22/1 of 1989. In the other appeal, the learned District Judge passed an order i e. in view of the order passed in the other appeal that the impugned judgment and decree is set aside and the case is remanded back to the learned Sub-Judge with direction to decide the same afresh 10. The two separate appeals have been filed. R A, O. No. 354/95 has been filed against the order dated 27th September, 1995 passed in the connected appeal which order had to be passed as the judgment passed by the learned trial Court was common in both the suits F. A O No. 353/95 has been filed against the order whereby the amendment has been allowed and the case stands remanded to the learned trial Court for afresh decision. This order arises as noticed earlier out of Suit No. 22/1 of 1989 which had been filed by Devkoo Devi. 11. The learned Counsel appearing for the appellants while laying challenge to the impugned orders argues that the amendment application was made in Suit No. 22/1 of 1989 which had been filed by Devkoo Devi and no such application was moved in the other case. Therefore, the judgment and decree passed in Suit No. 20/1 of 1989 in which the predecessor-in-interest of the appellants was the plaintiff, could not have been set aside, 12. The other ground urged is that all what Devkoo Devi had sought to plead by way of amendment was to pray for the decree for possession in the alternative as the defendant in that suit was found to be in possession of the suit property and there was sufficient material before the learned first appellate Court to dispose of the appeals on the existing material i. e. evidence on record and there was no need to remand the case for afresh decision, by the learned trial Court 13. Learned Counsel in support of his contention pressed into service the provision contained in Order 41, Rule 24 of the Code of Civil Procedure Learned Counsel has also cited Supreme Court decision, Muni Lal v. Oriental Fire and General Insurance Co. Ltd and another, (1996) SCC 90 and Khem Chand v. Hari Saran and others, ILR (H, P. Series), 1987, 267. 14. Ltd and another, (1996) SCC 90 and Khem Chand v. Hari Saran and others, ILR (H, P. Series), 1987, 267. 14. The learned Counsel appearing for the respondents has also cited case law, Ganpat Singh v Sher Bahadur Singh and others, AIR 1978 All 66 and Vinay Krtihanav. Keshav Chandra and another, (1993) Suppl (3j SCC 129. 15. The learned Counsel appearing for the respondents submits that since two suits filed by the parties against each other had been disposed by a common judgment and decree and the amendment having been allowed in the Suit No. 22/1 of 1989. by necessary implication, the other appeal arising out of the Suit No 20/1 of 1989 had to be disposed of in view of the order allowing the amendment and thus the judgment and decree passed by the learned trial Court in that suit could not be maintained. 16. Learned Counsel further submits that the matter could not be disposed of by the learned appellate Court as the amendment having been allowed, afresh issue had to be framed Amended written stetement had to be taken and the plaintiff had to lead evidence in that suit on the relief of possession which had been claimed by way of amendment. 17. After hearing the learned Counsel for the parties and on perusal of the impugned orders and the record of the learned Courts below, we are of the opinion that there is no force in the points urged by the learned Counsel for the appellants and the appeals have to be dismissed. 18 In our considered view, the appellants have to blame only themselves for all what has been done The suit No. 20/1 of 1989 was tiled earlier in point of time when the Suit No. 22/1 of 1989 was filed, the application should have been made under section 10 of the Code of Civil Procedure for the stay of the proceedings of the second suit or in the alternative, prayer should have been made for the consolidation of the two suits which admittedly has not been done. Under the circumstances, when two suits are separately tried and the evidence has been led by both the parties in each such case and are disposed of by a common judgment, by necessary implication, the points agitated and decided are bound to influence the mind of the learned Court while deciding the other case. Under the circumstances, when two suits are separately tried and the evidence has been led by both the parties in each such case and are disposed of by a common judgment, by necessary implication, the points agitated and decided are bound to influence the mind of the learned Court while deciding the other case. If the suit filed by the predecessor-in-interest of the appellants before us had been decided separately by the learned trial Court, then in that situation, possibly the contention raised by Shri G. D. Verma had substance and decree passed in favour of his client could be maintained by the appellate Court, that too after hearing the appeal on merits. As the judgment was common and decree passed in Suit No 22/1 of 1989 was set aside in view of the amendment having been made, the decree being one could not be maintained in the other appeal and had to follow the result. 19. Whether the appeal could be decided on merits after the proposed amendment by the learned first appellate Court on the existing material it was for the learned first appellate Court to consider. In case the appeal could be decided on merits and did not necessitate remand, the matter could have been dealt with on the existing material and decided That has not been done and as pointed out by the learned Counsel appearing for the respondent that after the amendment has been allowed, new issues have to be framed and the plaintiff in that suit is to lead evidence on the pleas raised in the amended plaint, therefore, the matter could not be decided by the learned first appellate Court on the existing evidence on record. 20. It is too well known that in a given situation, the amendment can always be allowed provided it is not mala fide and does not take away any right which has vested in the other side. The plaintiff had filed a suit for declaration and injunction and he is the owner in possession of the suit property Having realised the true and correct position, a decree for possession in the alternative has been claimed by way of amendment In our view the amendment stood rightly allowed by the learned first appellate Court. 21. In our view, the amendment that has been allowed has not taken away any right which has vested in the other side. 21. In our view, the amendment that has been allowed has not taken away any right which has vested in the other side. The amendment sought does not appear to be mala fide to us. The delay in filing the application for amendment in our view is not fatal so as to disentitle the parties seeking amendment of the plaint or the written statement in a given case. 22 In the judgment reported in (1996) I SCC 90, their Lordships of the Honble Supreme Court were dealing with the amendment of the pleadings in a suit for declaration where consequential relief had not been prayed for and the suit was dismissed by the learned trial Court as not maintainable under proviso 34 of the Specific Relief Act. It was held that the application for amendment filed before the appellate Court seeking consequential relief after the suit was barred by limitation could not be allowed. This case has thus no application with the controversy raised in the present case. 23. In the decision reported in ILR (H. P. Series), 1987, 267, the question related to the failure to frame issue and omission of the parties to lead evidence On appreciation of the controversy in that case, it was held that the remand of the whole case was not justified, Only the relevant issue could be referred to the learned trial Court for recording evidence and to give its finding on that issue. This case has also no application to the present controversy. 24. Having perused the judgment given in AIR 1978 Allahabad 66, cited by the other side, we think that this judgment is nearer to the point in issue. In that case, the suit had been filed for declaration of title with permanent injunction, The trial Court in that suit had found that the plaintiff was the owner of the suit property, but it was the defendant who was in possession of the suit property. The suit was ordered to be dismissed and the amendment of the plaint adding the relief of possession had been allowed at the appellate stage Three decisions of the Hon’ble Supreme Court were relied upon and these are referred to and discussed in para 4 in the said judgment. 25. The observation reported in (1993) Suppl (3) SCC 129, can also be read with advantage on the points raised before us. The Honble . 25. The observation reported in (1993) Suppl (3) SCC 129, can also be read with advantage on the points raised before us. The Honble . Supreme Court in this judgment has held that where the plaintiff had filed a suit for declaration of title to the property and the property was held not in exclusive possession of the plaintiff and the defendant had raised the plea of bar under the proviso to section 42 of the Specific Relief Act on the ground that the plaintiff had failed to seek further relief of possession, it was observed that the plaintiff in such a situation ought to have sought the amendment of the plaint and could have prayed for the relief of possession also 26. Though there is voluminous case law on the law of amendment and it has been repeatedly said that the law relating to the amendment has to be given liberal interpretation, a party could not be refused an amendment seeking appropriate relief due to some mistake, negligence or inadvertence or infraction of the rules of procedure. The amendment had not to be refused unless the Court is of the opinion that the parties seeking the amendment was acting mala fide or by his act and conduct some injury has been caused to the opponent which could not be compensated by costs* The amendment being sought cannot be refused solely on the ground that the party seeking it has been either careless or negligent in asking for the amendment In case the amendment to be allowed does not cause any injustice to the other side, it has not to be refused. 27 We thus find no illegality or impropriety or error of jurisdiction in the impugned orders. Consequently, there is no force in these appeals and are accordingly dismissed with no order as to costs Appeal dismissed.