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2000 DIGILAW 1120 (PNJ)

Karnail Singh v. Sohan

2000-09-15

R.L.ANAND

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JUDGMENT R.L. Anand, J. - This is a Civil Revision which has been directed against the order dated 2.5.1998 passed by the Additional District Judge, Jalandhar, who dismissed the application of the plaintiff-petitioners under Order 6 Rule 17 C.P.C. 2. Some facts can be noticed in the following manner. Suit for declaration was filed by the plaintiff-petitioners that they are owners in possession of the property. The suit was resisted by the defendants. The trial Court dismissed the suit by making observation that the plaintiffs are the owners but they are not in possession of the suit property on the date of the institution of the suit and as such the suit for declaration was not legally maintainable. 3. Aggrieved by the judgment of the trial Court the petitioners filed an appeal before the first appellate Court in December 1992. During the pendency of appeal in the year 1997 plaintiffs filed an application under Order 6 Rule 17 C.P.C. for the amendment of the plaint and sought the following amendment - "to add the following in the cause title of the suit "in the alternative suit for possession." Further the amendment sought was as under :- "In case the Court for any reason is pleased to hold that the plaintiffs are not in possession of the suit property, then in that event, a decree for possession may kindly be passed in favour of the plaintiffs and against the defendants." 4. This application was resisted by the defendant-respondents mainly on the ground that the cause of action has already become time barred and that the application has been made at a highly belated stage after a lapse of 9 years, therefore, it should be dismissed. First Appellate Court for the reasons given in the impugned order dated 2.5.1998 dismissed the application. The reasons of dismissal are given in paras No. 7 and 8 of the impugned order :- "7. I have considered these submissions of the learned Counsel for the applicants but find myself unable to agree with him. At the outset it can be stated that the suit for declaration to the effect that the applicants- plaintiffs are owners in possession of the suit land was filed on 1.8.1988. This suit was decided by Sh. Karamjit Singh, Sub Judge, Phillaur on 28.11.1992. However, the present application for amendment in the plaint was filed on 8.4.1997. At the outset it can be stated that the suit for declaration to the effect that the applicants- plaintiffs are owners in possession of the suit land was filed on 1.8.1988. This suit was decided by Sh. Karamjit Singh, Sub Judge, Phillaur on 28.11.1992. However, the present application for amendment in the plaint was filed on 8.4.1997. In other words, the present application for amendment has been filed after a period of nine years and that too after getting a verdict against them regarding possession of the suit land. It is also relevant to point out that in the trial Court, the respondents had produced copies, Exs. D.2 to D.7 of the Jamabandies from the year 1961-62 till 1986-87, showing that the respondents were in possession of the suit land. Even the khasra girdawaries, Exs. D.8 to D.12 from the year 1967-68 till 1990-91 were produced showing the possession of the respondents over the suit land. In such circumstances, when such documentary evidence was produced in the trial Court, no explanation is forthcoming as to why such an application for amendment of the plaint was not filed. In other words, when the suit was filed in the year 1988 for declaration and the revenue record from the year 1961-62 was showing the possession of respondent No. 1 to 3, it is not understood as to how the suit for declaration to the effect that the applicants were owners in possession of the land was filed. Even the suit for possession could have been barred by limitation and as such the amendment of the plaint filed after nine years is really belated and would defeat a valuable right of limitation accrued to the respondents. Reliance in this respect can be placed on the following two cases :- 1. K. Raheja Construction Ltd. & another v. Alliance Ministries & others, 1995(3) All India Land Laws Reporter 425, and 2. Radhika Devi v. Bajrangi Singh and others, 1997(3) All India Land Laws Reporter 547. So far as the authority cited by the learned Counsel for the applicants is concerned, it can be state that its facts are quite distinguishable from the facts of the case in hand. Radhika Devi v. Bajrangi Singh and others, 1997(3) All India Land Laws Reporter 547. So far as the authority cited by the learned Counsel for the applicants is concerned, it can be state that its facts are quite distinguishable from the facts of the case in hand. In that case, during the pendency of the suit an application for seeking amendment of the plaint to include the relief of possession was given on the ground that the plaintiff had been dispossessed during the pendency of the suit. This amendment was allowed by the learned trial Court but the plaintiff failed to pay the costs and as such the prayer for amendment was rejected. Thereafter, on the application of the plaintiff, the suit was dismissed as withdrawn with permission to file a fresh suit on the same cause of action and it was under these circumstances that said revision was filed in the Honble High Court. However, in the instant case, respondents No. 1 to 3 were shown to be in possession of the suit land in the Jamabandies and Khasra Girdawari right from the year 1961-62 whereas the suit was filed in the year 1988. In other words, it was not a case where the plaintiffs were dispossessed during the pendency of the suit. 8. In view of my above discussion, my feeling is that if the amendment is allowed, it will adversely affected the rights of other party. The plaintiff-applicants are guilty by not taking such a plea in the very beginning of the case. Moreover, if this amendment is allowed, it will cause prejudice to the other side which cannot be compensated by means of costs. Moreover, the amendment of a claim which is barred by time is also not to be allowed, which amounts to or results in defeating a legal right to a opposite party on account of lapse of time." 5. Learned Counsel appearing on behalf of the petitioners submits that the first Appellate Court has wrongly and illegally dismissed the applications. It has been held by the trial Court that plaintiffs are the owners of the property. If the frame of the suit was initially bad, the cause of action has not been changed because the suit of the plaintiff was based on title. 6. It has been held by the trial Court that plaintiffs are the owners of the property. If the frame of the suit was initially bad, the cause of action has not been changed because the suit of the plaintiff was based on title. 6. On the contrary, learned Counsel for the respondents submitted that the plaintiffs were not in possession of the suit property on the date of the institution of the suit and specific objection was taken by the defendants in the written statement. In spite of the fact that objection was taken, the plaintiffs did not opt to amend the plaint at the trial stage. So much as when the appeal was filed in the first Appellate Court, the plaintiffs did not make any application for the amendment of the plaint along with memorandum of appeal and at the highly belated stage after a lapse of 9 years, the application has been rightly dismissed by the first Appellate Court. Apart from that the defendants have got a very valuable right because the suit of the plaintiffs has become time barred. 7. Without expressing any opinion on the merits of the case, lest it may prejudice the case of the parties, I am of the opinion that the cause of action in this case was based on title. It is true that the amendment has been sought at a highly belated stage but for the advancement of justice this itself is no ground to reject that application if the defendant-respondent can be compensated with sufficient costs. 8. In this view of the matter, this revision is allowed. Resultantly, the application under Order 6 Rule 17 C.P.C. stands allowed and plaintiff- appellants in the first Appellate Court be given opportunity to place on record the amended plaint. It will give right to the defendant-respondents to file an additional written statement to the amended plaint, if so desired. The directions are also given to the first Appellate Court that after taking the amended plaint and the written statement, if any filed, appeal shall be disposed of on the evidence which has already been recorded by the trial Court and no additional opportunity shall be given to the petitioners to lead the evidence before the first Appellate Court after the amendment of the plaint. It is also made clear that if any right has accrued to the defendant- respondents with regard to limitation, that right will subsist and defendants can always highlight that the suit of the plaintiffs has become time barred and this aspect of the case shall also be considered by the first Appellate Court. The plaintiff-petitioners shall pay Rs. 3,000/- as costs for allowing of the application. 9. Nothing stated above shall amount to an expression of my opinion on the merits of the appeal. The parties through their counsel are directed to appear before the first Appellate Court on the next date of hearing already fixed by it. The appellate Court is directed to dispose of the appeal within three months. Revision allowed.