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2000 DIGILAW 330 (HP)

DURGA SINGH v. KAMLA DEVI

2000-12-21

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This petition under Section 115 of the Code of Civil Procedure, 1908 (hereafter referred to as the Code) has been filed against the order dated 21.8.1999 passed by the learned Sub Judge, Ghumarwin in Civil Suit No. 70/1 of 1993/90 whereby the application under Order 6 Rule 17 of the Code moved by the plaintiffs petitioners (hereafter referred to as the plaintiffs) for amendment of the plaint has been dismissed. 2. Brief facts leading to the presentation of this revision petition are that the plaintiffs have filed a civil suit for permanent prohibitory injunction against the original defendant Rattan Singh, since deceased, and whose legal representatives - defendants - respondents 1 to 4 (hereafter referred to as the defendants) have been brought on record. The relief of injunction has been claimed on the averments that Thola Singh, the predecessor in interest of the parties to the suit, was owner of the land in suit as detailed in Para 1 of the plaint. After the death of Thola Singh and one Kartar Singh, father of plaintiffs Nos. 9 to 11, the suit property was mutated in the names of plaintiffs Nos. 1,2,7,9 to 11, defendant No.l and one Smt. Shankari Devi, widow of Thola Singh, deceased. However, defendant No. 1 having become very greedy person is bent upon to get the whole property left behind by said Shri Thola Singh. To achieve this purpose, defendant No.l had applied to the forest department for grant of sanction to extract resin from the cheel trees standing on the suit land and is also bent upon to cut and remove the trees and other produce from the land in suit to the exclusion of plaintiffs and proforma defendants. Hence the suit. 3. Deceased defendant No. 1 contested the suit and in his written statement, apart from denying the claim on merits, raised the preliminary objections that the suit is not maintainable; that the plaintiffs have no cause of action and locus standi to sue; that plaintiffs are estopped from filing the suit by their own acts and deeds; that the suit is bad for mis-joinder and non-joinder of necessary parties; that the Court has no jurisdiction to hear and decide the suit and that the suit has not been properly valued to purposes of Court fee and jurisdiction. On merits, it has been claimed that the mutation as alleged though was attested but a revision arising out of such attestation is still pending before the Commissioner. It is further claimed that Thola Singh deceased had divided his property amongst his sons, daughters, daughters - in - laws and wife and at the time of such partition, the suit land had fallen to the share of Thola Singh who executed a Will on 15.8.1980 registered with the Registrar on 19.5.1990 after it was contested by the plaintiffs for 8 years. It is, therefore, claimed that the defendant is the sole successor to Thola Singh by virtue of the Will and thus, the claim as made out in the plaint has been denied. 4. When the suit was at the stage of rebuttal evidence, the plaintiffs moved an application under order 6 Rule 17 of the Code praying for amendment of the plaint with a view to add a prayer for a decree for declaration that said Thola singh was a limited owner and not competent to transfer the suit land in any manner and in the alternative for declaration that the suit property being ancestral, coparcenery and joint Hindu family property, devolved upon the plaintiffs and the deceased defendant being coparceners and Thola Singh was not competent to execute the Will qua the said property and to introduce the facts by way of amendment by which the aforesaid reliefs could be claimed. 5. The application was contested by the defendants. The learned trial Judge, after hearing the parties, dismissed the application. Hence the present revision petition. 6. I have heard the learned counsel for the parties and have gone through the records. 7. It was contended for the plaintiffs that by seeking amendment of the plaint, they just want to raise alternative pleas, which are necessary for the just and final disposal of the controversy between the parties, therefore, amendments as prayed for are permissible and ought to have been allowed. 8. 7. It was contended for the plaintiffs that by seeking amendment of the plaint, they just want to raise alternative pleas, which are necessary for the just and final disposal of the controversy between the parties, therefore, amendments as prayed for are permissible and ought to have been allowed. 8. To substantiate his contention, the learned counsel has relied on a few decisions which need not be set out here in detail for the reason that it is by now well settled that alternative pleas in support of a claim are permissible and can be permitted to be raised save and except when such pleas, if allowed, will change the nature of the suit, or cause of action or when the claim based thereon may be barred by law of limitation or which may be sought to be raised at a highly belated stage and allowing whereof may deprive the opposite party of a right which might have vested in it by afflux of time. Similarly amendment to claim an alternative relief is also permissble provided that such relief can be claimed on the basis of the facts already averred in the plaint. 9. On the other hand, the learned counsel for the defendants had contended that the amendments prayed for seek to introduce not only a new cause of action and case but also to claim a relief other than the one already claimed and claim for such relief is already barred by time. Therefore, the Court below has rightly dismissed the application for amendment of the plaint. 10. The suit instituted by the plaintiffs is for permanent injunction on the ground that the suit property was inherited by the parties by succession and the defendant, therefore, has no right to change its nature or use it exclusively for his own benefit. By the amendments as prayed for, the plaintiffs want to add the relief of declaration that Thola Singh was not competent to transfer the suit land in view of order dated 15.10.1908 B.K. and in the alternative a declaration that the suit property being ancestral, coparcenary and joint Hindu family property, Thola Singh was not competent to execute the Will qua the suit property and to introduce new facts to substantiate these relief’s. 11. The cause of action to sue for declaration of title arises when a party claims title which is denied by the other party. The cause of action to sue for declaration of title arises when a party claims title which is denied by the other party. In such a case, cause for consequential relief of injunction may naturally follow. However, in a case for permanent prohibitory injunction, the cause of action arises from invasion or threat to a vested right. Therefore, in a suit for injunction plaintiff cannot be allowed to add the relief of declaration by way of amendment unless such relief can be claimed on the facts already pleaded. 12. It is not the case of the plaintiffs that cause of action to sue for declarations has accrued to them during the pendency of the suit. The date of accrual of cause of action, for the relief of declaration has not been mentioned in the proposed amendment but from the contents of te application, it appears that cause of action for the said relief had accrued before the institution of the suit. However, the facts entitling the plaintiff to such relief were not pleaded. To overcome this, the plaintiffs now want to introduce the facts constituting the cause of action to sue for declaration also by amendment. If the plaintiffs are allowed to do so, the nature of the suit as also the cause of action will be changed. 13. In so far as the claim for alternative relief now sought to be made by way of amendment, even on the facts which are to be pleaded by way of amendment now, is time barred inasmuch as the registration of the Will was contested by the plaintiffs and they knew about the existence of the Will sought to be challenged by way of amendment, much prior to the institution of the suit. 14. In view of the above discussion, it is clear that allowing the amendment as prayed for will not only change the nature of the suit but also introduce new causes of action on the basis of which claim for declaration is now time barred. The learned trial Judge has rightly concluded so. 15. Therefore, there being no illegality or material irregularity or perversity in the impugned order, it does not call for interference by this Court. 16. As a result, this petition is dismissed, leaving the parties to bear their own costs. 17. Parties are directed to appear before the trial Court on 12.1.2001. The learned trial Judge has rightly concluded so. 15. Therefore, there being no illegality or material irregularity or perversity in the impugned order, it does not call for interference by this Court. 16. As a result, this petition is dismissed, leaving the parties to bear their own costs. 17. Parties are directed to appear before the trial Court on 12.1.2001. Records of the Court below be returned forthwith. Petition dismissed