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2000 DIGILAW 849 (RAJ)

L. Rs. of Pratap Mal v. Smt. Prem Bai

2000-07-19

N.P.GUPTA

body2000
JUDGMENT 1. - By this revision the petitioner has sought co assail the order of the learned Appellate Court dated 6.1.2000 whereby the learned Appellate Court has allowed the plaintiff non-petitioner's duplication for amendment of the plaint in a suit for eviction inter alia on the ground of reasonable and bona fide necessity of Vinod Kumar which suit has been dismissed by the learned trial Court. 2. The suit was originally filed way back in the year 1979 by one Ratanlal, the father of Vinod Kumar and the ancestor of the present plaintiffs who are the widow, daughters and sons of the deceased Ratanlal. Ratanlal had expired on 4.12.85 when the suit was pending before the learned trial Court as it had been dismissed on 19.10.89. The necessity disclosed in the plaint was that Vinod Kumar after passing M.Com. Final Examination has stopped pursuing further education and the plaintiffs want his son to start the oil mill shop in the shop in question. By the way it may be mentioned here that as the facts have come on record both the parties had extensive business establishment and business enterprises may be in different names and doing different business. 3. The amendment sought to be made was to the effect that the deceased had made a will on 18.8.84 which was for the first time disclosed by the present non-petitioner No. 1 the widow on 20.1.98 only and on that basis the plaintiff wanted to add paras 7A to 7H as detailed in para 9 of the application, inter alia seeking to contend that Vinod Kumar has married having one daughter and one son also and thus having family liabilities while his burden is being borne by his brother non-petitioner Pushkarlal. The will was alleged to have not been disclosed as by will different properties were willed away in favour of different persons and disclosure would have disrupted the family and it is for this reason that the will was not disclosed even in the suit filed against the tenant Sirumal Virumal. The will was alleged to have not been disclosed as by will different properties were willed away in favour of different persons and disclosure would have disrupted the family and it is for this reason that the will was not disclosed even in the suit filed against the tenant Sirumal Virumal. It was also sought to be pleaded that time and again the petitioners are insisting on the fact that Vinod Kumar is carrying on the business while according to the plaintiff the Agarwal Oil Mill is the branch of firm Kanniram Ramjeevan but whose sole proprietor is Pushkarlal wherein Vinod Kumar has no interference and that since Vinod Kumar has no independent source of income and is living under very odd economic conditions and therefore till the premises are vacated the plaintiff Prem Bai has put the burden of Vinod Kumar on Pushkarlal. Similarly the other facts regarding comparative hardship, partial eviction, defendants having acquired other premises and certain other pleadings calculated to explain previous statement of Vinod Kumar and assail the findings of the learned trial Court were also sought to be taken. This application was filed on 18.8.99 supported by the affidavit of Pushkarlal only. 4. A reply to this application was filed on the side of the petitioners on 27.9.99 cataloguing in detail the sequence of events taking place during the course of proceedings right since the death of Ratanlal till filing of the reply. The gravamen of reply that the will is concocted document and never existed till it was sought to be produced by the plaintiff respondent by application dated 5.4.99 under section 151 Civil Procedure Code as a subsequent event to rebut the evidence of the present petitioner, to this application a detailed reply has been filed on 6.4.99 and vide order dated 28.7.99 this application was dismissed, and it is thereafter that present application has been filed mala fidely to get over the order dated 28.7.99 which had not been challenged, and in an attempt to get over the difficult situation looming large about the plaintiffs not likely to get the decree for eviction in view of the material that has come on record. It was also contended that certain paragraphs sought to be added do not amount to subsequent events. It was also contended that certain paragraphs sought to be added do not amount to subsequent events. Likewise certain paragraphs are only by way of arguments to be raised in appeal and thus it was prayed that the application may be dismissed with compensatory cost. 5. The learned Appellate Court by the impugned order has allowed the application by simply observing that since the suit is for eviction, by desired amendment the plaintiff does not want to set up a different case so as to change the nature of the suit or to change the relief, the suit has been filed on the basis of bona fide necessity for eviction and even after amendment it would remain a suit for bona fide necessity of the same Vinod Kumar. Regarding delay it has been observed that for that the defendant may be compensated by cost. With these findings the amendment has been allowed on payment of Rs. 3000/- cost. 6. Assailing the impugned order, the learned counsel for the petitioner has catalogued rather reiterated the sequence of facts as has come on record showing that the so-called will is ex facie concocted document inasmuch as the very theory of the will being disclosed for the first time on 20.1.1998 has no basis or rationale whatever inasmuch as what was anything auspicious on 20.1.1998 to disclose will of 1984. Moreover when the alleged testator had expired way back in the year 1985 and likewise it has also been contended that even assuming that the will might have been disclosed on 20.1.98. still even thereafter there had been umpteen number of occasions on which the plaintiff was required to, expected to, and was supposed to file the will before the Court but there was not even a whisper about its existence and it was for the first time sought to be produced on 5.4.99 which application was dismissed on 28.7.99 for good and sufficient reasons that order having not been assailed and limitation having lost, the will is sought to be produced by a back door and thus it was contended that the application for amendment is itself mala fide. It was also contended that a pointed and specific objection has been taken in the reply about the application being mala fide but the learned court below has not been adverted towards this aspect of the matter. It was also contended that a pointed and specific objection has been taken in the reply about the application being mala fide but the learned court below has not been adverted towards this aspect of the matter. To highlight the allegations of' mala fide the learned counsel also invited my attention to certain pleadings sought to be added which are calculated to improve upon the statement of Vinod Kumar recorded by the trial Court so also on the pleadings which are in the nature of criticising the finding of the learned trial Court. 7. As against this the learned counsel for the non-petitioner vehemently contended that the amendments relate to subsequent events and has to be allowed, it does not change the nature of the cause of action. It was pointed out that so far previous occasions that are alleged to have come after 20.1.1998 when they could produce the will are concerned, it was contended that on all those occasions it was not necessary for the plaintiffs to have produced the will. It was also contended that the order dated 28.7.99 cannot be projected against the plaintiffs non-petiotners as having the effect res judicata. It was further contended that it is settled law that the correctness or the suspectibility of the plea sought to be raised by way of amendment cannot be judged at the stage of considering the application for amendment, the amendment is first to be allowed thereafter the party seeking amendment is to be given opportunity to prove the plea and if he fails to prove, he may not succeed. The plea cannot be pre-judged while considering the application for amendment. Learned counsel cited various judgments of Hon'ble Supreme Court and other High Courts to strengthen his submissions. 8. Having heard the learned counsel and having gone through the record and the various judgments cited at the Bar, l make it clear that this order not need be encumbered so as to add the various judgments cited by either side, for the simple reason that there is no quarrel on the legal principles propounded in the various judgments viz. Having heard the learned counsel and having gone through the record and the various judgments cited at the Bar, l make it clear that this order not need be encumbered so as to add the various judgments cited by either side, for the simple reason that there is no quarrel on the legal principles propounded in the various judgments viz. that if the amendment relates to subsequent events, they have to be allowed, there the amendment does not change the nature of the cause of actions or jurisdiction, it can be allowed, the merits of the pleas sought to be raised by way of amendment cannot be pre-judged at the time of considering the application for amendment. But then it is also established law that these are not the exhaustive principles so as to compel the court in every case to allow the amendment if these conditions are fulfilled. I may mention here that I asked a pointed question to the learned counsel to the effect that though the Court while deciding application for amendment is not supposed to decide the plea sought to be raised on merits, at the time of deciding the application for amendment, but then would it mean that Court dealing with an application for amendment cannot even prima facie expect some material to inspire some confidence of the Court so as to prevent an absolutely palpably false and frivolous plea from being raised to prolong the litigation though purportedly, on account of articulate drafting skill it may look to be relevant for the decision of the controversy. With all fairness learned counsel for the non-petitioner rather conceded that the Court can ask for some prima facie material to be so satisfied. 9. Though the contentions raised on the side of the petitioners to assail the order. if were to be considered superficially, do clearly gives an impression as if the amendment is sought to be opposed either on the ground of delay or on the ground of being based on a document which according to the defendant is concocted but despite capable of being so projected either it has not been so projected. if were to be considered superficially, do clearly gives an impression as if the amendment is sought to be opposed either on the ground of delay or on the ground of being based on a document which according to the defendant is concocted but despite capable of being so projected either it has not been so projected. A proper consideration of the contentions on the anvil of the material on record in my view does make it clear that the contention is to the effect that the amendment is mala fide and having been sought in the attempt to introduce the will at this juncture, the plaintiffs are somehow trying hard to smuggle in, the will on record so as to attempt to get out of the difficult situation of likelihood of the dismissal of the suit which is looming large on the material on record. The contention of the learned counsel for the petitioner is that in the totality of the circumstances irrespective of the correctness of the plea of reasonable and bona fide necessity, in view of death of Ratanlal it having come to an end, the plaintiffs are out and out even to go to the extent of fabricating documents so as to somehow see the suit to be decreed which is clearly mala fide action. Learned counsel further contended that in the totality of the circumstances learned court below was in jurisdictional error in allowing the application for amendment by considering the matter in a lop-side manner. 10. In my view the contentions of the learned counsel for the petitioner have substance and are required to be accepted. It is established law that the parties to the litigation are supposed to come to the Court with clean hands, are not allowed to play the game of hide and seek nor can they be allowed to use the Courts as Chess Board so as to play their man to somehow seek victory over other party. Here it is more than clear that when I tried to prima facie satisfy myself about the bona fides of the plaintiffs in seeking amendment, I failed to satisfy myself. So much so even the application for amendment, is not supported by an affidavit of either Prem Bai, the mother or Vinod Kumar who were the best persons to support the story. So much so even the application for amendment, is not supported by an affidavit of either Prem Bai, the mother or Vinod Kumar who were the best persons to support the story. The will is unprobated though probate is not necessary yet the fact remains that it is unprobated, it is neither registered nor is on any stamp paper and admittedly it has not been disclosed for more than a decade after the death of alleged testator so much so that it has not seen the light of the day even after it was allegedly disclosed by the mother, despite the fact that in view of the proceedings taken by the learned lower Appellate Court in ordinary course of things it was supposed to be produced. By making these observations I do not mean to express any opinion about the genuineness of the will but only mean to make it clear that in the circumstances desired amendment cannot at all be said to be a bona fide one. 11. True it is that the suit is the suit for eviction based inter alia on the ground of reasonable and bona fide necessity of Vinod Kumar and it would remain so. Likewise it is also true that the defendants have clearly brought on record the subsequent event of the alleged need to have come to an end in view of the death of Ratanlal and to support that plea necessary evidence has already been led, or may be in the process of being led, but then in that process when the will was sought to be introduced, the learned Appellate Court vide order dated 28.7.99, for good and sufficient reasons, rightly declined to take it on record. In such circumstances rather in the peculiar circumstances of the present case it cannot at all be said that the desired amendments are at all necessary for determination of real question in controversy between the parties, which is the basic and fundamental requirement of Order 6. Rule 17 Civil Procedure Code 12. In this view of the matter the revision is allowed. The impugned order is set aside. The application filed by the plaintiff non-petitioners for amendment of the plaint is dismissed. The parties are left to bear their own costs. Rule 17 Civil Procedure Code 12. In this view of the matter the revision is allowed. The impugned order is set aside. The application filed by the plaintiff non-petitioners for amendment of the plaint is dismissed. The parties are left to bear their own costs. Since the suit is of the year 1979 and the appeal before the learned lower Appellate Court is also of the year 1989, the learned Appellate Court is directed to expeditiously decide the main appeal itself.Petition allowed. *******