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2000 DIGILAW 240 (PNJ)

Chanan Singh v. Sarwan Singh

2000-02-29

V.M.JAIN

body2000
ORDER V.M. Jain, J. - This is a revision petition against the order dated 10.8.1998 passed by the trial Court dismissing the application of the plaintiffs seeking amendment of the plaint. 2. The facts which are necessary for the disposal of the present revision petition are that the plaintiffs filed a suit for possession of a "taur" measuring 12 marlas against the defendants and also prayed for the grant of permanent injunction restraining them from interfering in the possession of the plaintiffs over the suit property. During the pendency of the suit, the plaintiffs filed an application under Order 6 Rule 17 for the amendment of the plaint, alleging therein that the plaintiffs had inadvertently mentioned in the heading of the plaint that it was a suit for possession of the "taur" in dispute whereas the same is already in possession of the plaintiffs and similarly name of plaintiff No. 7 was inserted in the plaint even though he had already died. It was further alleged that in the plaint the plaintiffs had challenged the decree obtained by Ranjit Singh in Civil Suit No. 25 of 16.1.1987 but the details of the same had not been mentioned in para 6 of the plaint and the said para required clarification. It was further alleged that even the relief clause required amendment so that relief for possession was not claimed. It was further alleged that defendants 6 to 12 were impleaded as defendants in the suit inadvertently and their names were required to be deleted from the array of defendants. It was accordingly prayed that the plaintiffs may be allowed to amend the heading of the plaint, para 6 of the plaint and the relief clause and be also allowed to delete the name of Karnail Singh, plaintiff No. 7, who is already dead and to correct the name of plaintiff No. 37 as Charan Singh instead of Chanan Singh and to delete the names of defendants 6 to 12. The said application of the plaintiffs was contested by the defendants. The learned trial Court after hearing both sides and after perusing the record dismissed the said application vide order dated 10.8.1998. It is against this order of the trial Court that some of the plaintiffs have filed the present revision petition. 3. Notice of motion was issued. Counsel for the parties have been heard. 4. The learned trial Court after hearing both sides and after perusing the record dismissed the said application vide order dated 10.8.1998. It is against this order of the trial Court that some of the plaintiffs have filed the present revision petition. 3. Notice of motion was issued. Counsel for the parties have been heard. 4. The learned counsel appearing for the petitioners has submitted that the petitioners only wanted to omit the prayer for possession as they were already in possession of the suit property and this fact was already mentioned by them in the body of the plaint but inadvertently in the heading of the plaint and relief clause the relief of possession was wrongly sought. It was further submitted that regarding the civil Court decree, the plaintiffs were not challenging the validity of the decree but were submitting that the plaintiffs being not a party to the said suit in which the said decree was passed were not bound by the said decree. It was submitted that the trial Court wrongly dismissed the application of the plaintiffs by holding that any right had accrued to the defendants or that plaintiffs now cannot be allowed to challenge the validity of the decree. Reliance has been placed on AIR 1985 SC 817, Vineet Kumar v. Mangal Sain Wadhera. On the other hand the learned counsel appearing for the defendants-respondents submitted before me that no amendment could be allowed especially when the limitation for challenging the decree had already expired. Reliance was placed on 1996(1) Recent Revenue Reports 634 (Supreme Court) Radhika Devi v. Bajrangi Singh. 5. After hearing both sides and after perusing the record, in my opinion, the present revision petition must be allowed and the order dated 10.8.1998 passed by the trial Court dismissing the amendment application must be set aside. 6. As referred to above in the body of the plaint, it was clearly mentioned by the plaintiffs that they were owners in possession of the disputed property. However, inadvertently in the heading of the plaint as also in the relief clause, the plaintiffs had sought the relief of possession in respect of the suit property. On the facts and circumstances of the present case, it could not be said that there was any admission by the plaintiffs which the plaintiffs were withdrawing by way of amendment. However, inadvertently in the heading of the plaint as also in the relief clause, the plaintiffs had sought the relief of possession in respect of the suit property. On the facts and circumstances of the present case, it could not be said that there was any admission by the plaintiffs which the plaintiffs were withdrawing by way of amendment. As referred to above, in the body of the plaint the plaintiffs had already taken the plea that they were in possession of the suit property. Under these circumstances, there would be no question of plaintiffs seeking a decree for possession in respect of the suit property. That being so, the amendment sought by the plaintiffs in this regard can certainly be allowed. Similarly, the prayer of the plaintiffs to delete defendants 6 to 12 and Plaintiff No. 7 (being dead) and to correct the name of Plaintiff No. 37 as Charan Singh instead of Chanan Singh can also be allowed as it is only of formal nature. So far as amendment in para 6 of the plaint is concerned, in my opinion, the plaintiffs can certainly be allowed to amend the said paragraph so as to allege that the decree in the previous civil suit No. 25 of 16.1.1987 was not binding on them as they were not parties to the suit. There is nothing on the record to show that the plaintiffs are challenging the legality of the decree by way of the amendment of the plaint or that the said relief had become barred by time. As referred to above, the plaintiffs were merely alleging in para 6 of the plaint that the plaintiffs are owner in possession of the "taur" in dispute and the decree passed by the Civil Court in Civil Suit No. 25 of 16.1.1987 decreed on 11.10.1989 was not binding on the plaintiffs because all of them were not made parties in the said suit. Such an amendment can certainly be allowed and it cannot be said that by way of amendment of the suit, the plaintiffs were challenging the decree which they could not challenge because of limitation. In AIR 1985 SC 817 (supra) it was held by Their Lordships of the Supreme Court that normally amendment is not allowed if it changes the cause of action. In AIR 1985 SC 817 (supra) it was held by Their Lordships of the Supreme Court that normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. The authority 1996 Recent Revenue Reports 634 (supra) relied upon by the learned counsel for the respondents, in my opinion, would have no application to the facts of the present case. In the reported case, the plaintiff wanted to amend the plaint so as to challenge the gift deed in question. It was under those circumstances that it was held by Their Lordships of the Supreme Court that where a party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleadings, amendment would be refused. In the reported case, the gift deed was executed and registered with the knowledge of the plaintiff and even after filing of the written statement for 3 years no steps were taken to amend the plaint and a right accrued in favour of the defendant and under those circumstances it was held that such a right could not be defeated by permitting amendment of the plaint. However, the facts of the present case are entirely different and there is nothing on record to show that the defendants had acquired any right which was sought to be defeated by way of amendment of the plaint. 7. No other point has been urged before me. 8. For the aforesaid reasons the present revision petition is allowed. The order dated 10.8.1998 passed by the trial Court is set aside and the plaintiffs are allowed to amend the plaint as prayed for. No costs. Revision allowed.