Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 205 (PNJ)

Smadh Maharaja Sardul Singh v. Ved Parkash Etc.

2000-02-18

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. Smadh Maharaja Sardul Singh situated at Barnala through Tarsem Chand alias Tarsem Das alias Tarsem Lal Chela Mahant Girdhari Lal Mohatmim, has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 24.12.1979 passed by the Court of Additional District Judge, Barnala, who dismissed the appeal by affirming the judgment and decree dated 29.8.1978 vide which the suit of the plaintiff-appellant was dismissed. 2. Before I proceed further, I may also make a mention that when this appeal was pending before the Court of Additional District Judge. Barnala, the plaintiff filed an application under Order 6 Rule 17 C.P.C., for amending the pleadings by incorporating the name of Shri Tarsem Chand as co-plaintiff but that application was also declined vide separate order dated 24.12.1979 the day when the judgment in the main appeal was also pronounced. 3. Some facts can be noticed in the following manner: Smadh Maharaja Sardul Singh earlier filed the suit for possession of the land measuring 131 Kanals 3 Marlas through Tarsem Dass Chela Mahant Girdhari Lal for possession of the land fully described in the head note of the plaint and the case set up by the plaintiff was that Smadh Maharaja Sardul Singh was the owner of the land measuring 131 Kanals 3 Marlas. Tarsem Chand alias Tarsem Lal Chela Girdhari Lal is the Mohtmim of the property of the Smadh. He died on 27.8.1973. After his death Tarsem Dass has succeeded to the Mohtmimship of this Smadh and mutation No. 7509 was duly sanctioned on 29.9.1973. Tarsem Dass now performed all the religious ceremonies with regard to this Samadh. Girdhari Lal, the previous Mohatmim was spent-thrift, drunkard and squanderer and had thus alienated the property of the Samadh without legal necessity and without the interest of the estate to Shri Rikhi Ram by executing lease deed in his favour for the longer duration and that too for a very small consideration and the possession of the land was delivered to him vide various chakotanamas as referred to in para 4 of the plaint. It was further pleaded that the land has further been leased to defendants No. 2 to 6 by Shri Rikhi Ram and they are in possession of the same. Plaintiff called upon the defendant to surrender the possession of the land in question but to no effect. It was further pleaded that the land has further been leased to defendants No. 2 to 6 by Shri Rikhi Ram and they are in possession of the same. Plaintiff called upon the defendant to surrender the possession of the land in question but to no effect. On these brief allegations the suit for possession was instituted. 4. Notice of the suit given to the defendants who denied all the allegations by filing the written statement. Defendant No. 1 Shri Rikhi Ram took preliminary objections that the suit is not within limitation and that it is barred by the principles of res-judicata. The suit has not been properly stamped for the purpose of court-fee and jurisdiction and is bad for non-joinder of necessary parties. It was also pleaded that no sanction of the Advocate General has been obtained under Section 92 of the Civil Procedure Code before filing the suit. Tarsem Dass being in Government service and a married man cannot become Mohatmim of the Samadh. On merits the stand of the defendant No. 1 was that the property in question did not belong to Samadh Maharaja Sardul Singh. There was no Samadh at Barnala. Girdhari Lal was the owner of the property of the Samadh. He was not a spend-thrift and squanderer. The land was given on chakota to him by Girdhari Lal of his free will and the necessary mutations were also delivered to him on the basis of the chakota and he is in possession of the same. 5. From the findings of the parties the learned trial Court framed the following issues:- 1. Whether the suit is property valued for purposes of Court fee and jurisdiction? OPP 2. Whether Surjan Singh defendant is son of Saun Singh? OPP 3. Whether Smadh Maharaja Sardul Singh is the owner of land measuring 131 Kanals 3 Marlas situated at Barnala? OPP 4. Whether Tarsem Chand alias Tarsem Dass is the Chela of Mahant Girdhari Lal Mohtimim of Smadh Maharaja Sardul Singh? OPP 5. Whether Girdhari Lal Mohtimim was spend-thrift and squanderer ? If so, its effect? OPP 6. Whether the chakotanam as detailed in para No. 4 of the plaint are void, illegal and without legal necessity? OPP 7. Whether the suit is within limitation? OPP 8. Whether the suit is barred by principles of res-judicata? OPP 9. OPP 5. Whether Girdhari Lal Mohtimim was spend-thrift and squanderer ? If so, its effect? OPP 6. Whether the chakotanam as detailed in para No. 4 of the plaint are void, illegal and without legal necessity? OPP 7. Whether the suit is within limitation? OPP 8. Whether the suit is barred by principles of res-judicata? OPP 9. Whether the suit is not maintainable without the sanction of Advocate General, Punjab? OPD 10. Whether this Court has jurisdiction to try the case against defendants No. 2 to 6 for ejectment? OPP 11. Whether the suit is bad for misjoinder and non-joinder of parties? OPD 11A. Whether the plaintiff has locus standi to file this suit? OPP 6. The parties led oral as well as documentary evidence in support of their case. The findings of issues No. 1 to 11 were in favour of the plaintiff. However, on issue No. 11-A, it was observed by the trial Court that plaintiff Shri Tarsem Chand has no locus standi to file the suit because Smadh Maharaja Sardul Singh is not a juristic person. It is not a legal entity. Resultantly, the plaintiff was non-suited on the basis of the findings on issue No. 11-A. 7. Aggrieved by the judgment and decree of the trial Court, the plaintiff field an appeal before the Court of Additional District Judge, Barnala. 8. During the pendency of the appeal two applications were moved by the plaintiff, one for leading additional evidence and other under Order 6 Rule 17 C.P.C. 9. So far as the first application for leading additional evidence was concerned that was dismissed as not pressed by the plaintiff. In the application under Order 6 Rule 17 C.P.C. it was averred by the plaintiff-appellant that Smadh Sardul Singh was a religious institution worshipped by the members of the Hindu community and was entitled to hold and dispose the property attached to the Smadh. The said institution was established long time back and its premises Thakardawara, in which murti of Krishan Radha, Hanumanji and Shankar Bhagwan have also been installed and there was a Teela for the purpose of worship. It was also pleaded that succession of that institution is from Mahant to Chela since generations. 10. The said institution was established long time back and its premises Thakardawara, in which murti of Krishan Radha, Hanumanji and Shankar Bhagwan have also been installed and there was a Teela for the purpose of worship. It was also pleaded that succession of that institution is from Mahant to Chela since generations. 10. Notice of the said application was given to the defendant who filed the reply and opposed the application under Order 6 Rule 17 C.P.C. by stating that the said application was a mala fide affair and the plaintiff has tried to set up a new case and that the said application under Order 6 Rule 17 C.P.C. should not have been allowed being a belated one because the new plea sought to be availed of by the plaintiff will re-open the entire case detrimental to the interest of the defendant. 11. Vide order dated 24.12.1979 and for the reasons given in para No. 4 of the said order the learned Additional District Judge, Barnala dismissed the application under Order 6 Rule 17 C.P.C. 12. Before I proceed further, it will be useful for me to incorporate the reasons of the learned Additional District Judge, Barnala when he declined the application under Order 6 Rule 17 C.P.C. "There can be little doubt that all amendments, howsoever belated, may be allowed if the same are necessary for effectual determination of the real matters of controversy between the parties and the proposed amendments are not calculated to work prejudice to the rights of the party of being compensated by costs or otherwise. In the case in hand since 1975, when the suit was instituted the plaintiff never thought it worthwhile to set up the plea in regard to the religious nature of institution and Samadh Maharaja Sardul Singh though a specific issue in regard to the locus standi of the plaintiff to institute the suit had been settled between the parties. Even in the revenue record, placed on the file before trial Court, Samadh Maharaja Sardul Singh had been entered as owner of the suit land. It was only at the stage of arguments of this appeal, that this new plea has been attempted to be set up. The learned counsel for the appellant did not controvert that but for the amendment of the plaint, the plaintiff had no locus standi to sue. It was only at the stage of arguments of this appeal, that this new plea has been attempted to be set up. The learned counsel for the appellant did not controvert that but for the amendment of the plaint, the plaintiff had no locus standi to sue. In the context, the permission for grant of the proposed amendment is plainly calculated to set up a new case by change of the entire front on the part of the plaintiff, which will work prejudice to the rights of the plaintiff, which is incapable of being compensated by costs or otherwise." 13. While disposing of the appeal on merit, the learned first appellate Court affirmed the finding on issues No. 1 to 11 but again ..... with the trial Court on issue No. 11-A and dismissed the appeal by holding that the suit of the plaintiff-appellant was not legally competent as the frame of the suit was bad right from the very beginning. In this manner, the appellant has come in the High Court by way of Regular Second Appeal. 14. I have heard Shri Sanjay Majithia, Advocate, on behalf of the appellant and Ms. Sweena Pannu, Advocate, on behalf of respondents No. 1 and 2 and with their assistance have gone through the record of this case. 15. In para 7 of the judgment of the first appellate Court it was observed as follows: "After hearing the learned counsel for the parties I am of the firm view that the finding recorded by the learned Court on issue No. 11-A is unexceptionable. It is axiomatic as was also ruled in Gurnam Singh v. Bishan Singh, Civil Appeal No. 1837 of 1972 decided on 30.10.1973 that a Samadh is not a juristic person. There is not a word in the whole of the plaint that the Samadh Mahant Sardul Singh was a religious or charitable institution and indeed in the Jamabandi for the year 1969-70 Samadh Maharaja Sardul Singh is entered as owner of the suit land which fact is also embodied in Chakota-names Ex: P-4 to P-8. Even Jagan Nath P.W.5, Tarsem Dass P.W.9 conceded this fact in their testimony. It is, however, proved on the record from the evidence of Sita Ram P.W.1., P.W.3, Siri Ram P.W.4, corroborated as they are by the document (copy Ex. Even Jagan Nath P.W.5, Tarsem Dass P.W.9 conceded this fact in their testimony. It is, however, proved on the record from the evidence of Sita Ram P.W.1., P.W.3, Siri Ram P.W.4, corroborated as they are by the document (copy Ex. P.W.6/B) that Tarsem Dass was appointed a Mohtamim after the death of Girdhari Lal in the presence of Mahants of the Bhekh who accepted him as the Mahant of the Samadh, for want of any rebuttal evidence, the learned trial Court had rightly ruled that Tarsem Dass in Chela of Girdhari Lal, and that the land in dispute belongs to Samadh Maharaja Sardul Singh. As the said Samadh was not suggested to be religious or, charitable institution, nor is there any evidence that this Samadh is worshipped by any one, the learned Court had, rightly returned findings on issues No. 3 and 4 in favour of the plaintiff and additional issues No. 11-A against the plaintiffs." 16. The fate of this R.S.A. will depend whether the application under Order 6 Rule 17 C.P.C. has been rightly declined or otherwise. If the High Court comes to the conclusion that there was justification on the part of the first appellate Court to decline the application under Order 6 Rule 17 C.P.C., then there is no difficulty on the part of the High Court to concur with the finding of the Courts below. If the answer of the High Court is to the contrary, then this appeal has to be accepted by setting aside the judgments and decrees of the Courts below and the suit is liable to be remanded to the trial Court for the adjudication of the matter after allowing the plaintiff to amend the plaint as prayed for. 17. It is settled principle of law that while interpreting the provisions under Order 6 Rule 17 C.P.C. a liberal interpretation should be given and the application under Order 6 Rule 17 C.P.C. cannot and should not be rejected merely on the ground that it is a belated one. The Courts are supposed to see whether the proposed amendment will change the cause of action or not. The suit of the plaintiff right from the very beginning was that Mahant Girdhari Lal who was the Mohtmim of the Dera was not a person of good character. The Courts are supposed to see whether the proposed amendment will change the cause of action or not. The suit of the plaintiff right from the very beginning was that Mahant Girdhari Lal who was the Mohtmim of the Dera was not a person of good character. He had squandered the property by giving long lease to defendant No. 1 who had further inducted his tenants on the suit land the area of which was more than 131 Kanals. The plaint of the trial Court further shows that the suit was instituted in the name of the Samadh through Shri Tarsem Chand alleging himself to be the duly nominated Chela of Shri Girdhari Lal Mohtamim. The things were not new before the first appellate Court. Shri Tarsem Chand made a statement before the trial Court and he had been prosecuting the litigation on behalf of the institution. If the first appellate Court was of the view that the frame of the suit was wrong, it could give the plaintiff an opportunity to amend the pleadings in such a manner that Shri Tarsem Chand may become a co-plaintiff with the Samadh or the plaintiff could be given an opportunity to withdraw the suit in order to file a fresh one on the same cause of action. The lower appellate Court became too technical for his convenience and dismissed the application under Order 6 Rule 17 C.P.C. by holding that it will furnish a new cause of action and in this manner, the suit of the plaintiff was thrown out as not legally maintainable. 18. Faced with this difficulty, the counsel appearing on behalf of the respondent submitted that concurrent finding of fact has been given by the Courts below and, therefore, the Honble High Court should not interfere in the same. The argument of the counsel for the respondent is misplaced in the given facts and circumstances. It is not even disputed by the High Court that the frame of the suit as such was wrong but the application under Order 6 Rule 17 C.P.C. which was moved by the plaintiff-appellant had been wrongly rejected. The moment the application was allowed and Tarsem Chand was allowed to become a co-plaintiff with the institution, then in that eventuality, there was no wrong with the frame of the suit. The moment the application was allowed and Tarsem Chand was allowed to become a co-plaintiff with the institution, then in that eventuality, there was no wrong with the frame of the suit. We all know that the law Courts are meant for advancement of justice and not to scuttle it. In this case both the parties had led evidence knowing the case of each other. All the findings had gone in favour of the plaintiff who was non-suited only on a technical ground. 19. In this view of the matter, I am of the opinion that the application under Order 6 Rule 17 C.P.C. has been dismissed wrongly by the first appellate Court. The same is hereby allowed subject to payment of Rs. 5,000/- as costs, which shall be conditional. If the costs are not paid before the trial Court by the plaintiff the present appeal shall be deemed to have been dismissed. In the event of the payment of costs this appeal shall be deemed to have been allowed. The impugned judgments and decrees are hereby set aside and the case is remanded to trial Court with the direction that on payment of costs the opportunity be given to the plaintiff to file an amended plaint. Defendant can also file written statement to the amended plaint. If any additional issue arises, that shall also be framed by the trial Court and then dispose of the matter according to law on merits and try to finish the suit as early as possible but not later than one year when the parties appear before him. 20. Resultantly, the appeal is allowed, the judgments and decrees of the Courts below are set aside in the terms as stated above and the parties are directed through their counsel to appeal before the trial Court on 13.3.2000.