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2001 DIGILAW 1376 (PNJ)

Mohinder Singh v. Bir Singh

2001-12-07

BAKHSHISH KAUR

body2001
Judgment Bakhshish Kaur, J. 1. Challenge in this revision is to the impugned order allowing amendment of the plaint under Order 6 Rule 17 CPC. 2. Bir Singh and others had filed a suit for declaration. The suit was contested and during the course of recording evidence in the cross-examination of Mohinder Singh, it revealed that Umrav Singh, father of the plaintiff had executed a sale deed in favour of defendant on February 26, 1992 and that there is also a valid Will executed on March 27,1993. These facts were not in the knowledge of the plaintiff when the suit was instituted. Thus, he intended to challenge the sale deed dated February 26,1992 and the Will dated 27.3.1993. The plaintiff, therefore, moved an application for amendment of the plaint, which has been allowed. Hence the revision preferred by the defendant-petitioner. 3. I have heard Sh. Hemant Kumar, learned counsel for the petitioner and Sh. J. S. Yadav, learned counsel for the respondents. 4. Mr. Hemant Kumar, learned counsel for the petitioner contended that in the suit, the plaintiff had challenged the sale deed dated march 13, 1992 executed in favour of the petitioner. The petitioner had purchased the land measuring 14 kanals 12 marlas from umrav Singh father of the plaintiff vide sale deed dated 26.2.1992 besides a registered Will dated 27.3.1992 was also executed in his favour. Mutation in respect of the sale was sanctioned in his favour in the year 1993. The plaintiff had never challenged the legality and validity of the sale deed and the Will. Thus, he cannot be allowed to amend the plaint at the stage of recording of rebuttal evidence and arguments. It was a registered sale deed, therefore, it is to be presumed that it is a notice to all and the amendment cannot be allowed in favour of the plaintiff on the ground of ignorance of this fact, saying that he came to know this fact only during the recording of evidence of the defendant. A valuable right has accured to the petitioner and the plaintiff cannot be allowed to challenge the sale deed and Will after nine years of the institution of suit. 5. In Dondapati Narayana Reddy V/s. Duggireddy Venkatanarayana Reddy and others, it has been held that rules governing the pleadings and leading of evidence has been incorporated in the interests of justice to avoid the multiplicity of litigation. 5. In Dondapati Narayana Reddy V/s. Duggireddy Venkatanarayana Reddy and others, it has been held that rules governing the pleadings and leading of evidence has been incorporated in the interests of justice to avoid the multiplicity of litigation. It is further observed that the amendment should, generally, be allowed unless it is shown that permitting the petitioner would be unjust and results in prejudice against the opposite side, which cannot be compensated by costs or would deprive him of his right which has accrued to him with the lapse to time. Amendment may also be refused if such a prayer made separately is shown to be barred by time. 6. In Estralla Rubber V/s. Dass Estate (P.)Ltd. it has been held that the amendment of pleadings under Order 6 Rule 17 CPC is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendments should not result in injustice to the other side. It is also observed under para 8 that a time-barred claim cannot be allowed to be raised by proposing an amendment to take away the valuable right accrued to a party. 7. On behalf of the respondent, reliance has been placed on M/s Foremost Diaries Ltd. and others V/s. M/s Banarsi Dass Amar Nath, and Smadh Maharaja Sardul Singh V/s. Ved parkash etc. and Pritpal Singh V/s. Amar Kaur etc. 8. The registration of sale deed may be notice to all and for that matter it can be said that the sale deed is now being impugned could be challenged at the initial stage when another sale deed challenged in the suit, but it is also to be kept in view that both these documents i. e. sale deed dated 26.2.1992 and the Will dated 27.3.1992 were allegedly made in favour of mohinder Singh-defendant, who happens to be his nephew while the plaintiff is the daughter of umrav Singh. The fact of the execution of sale deed and the Will came to the notice of the plaintiff only when the defendant had appeared in the witness box as his own witness. The fact of the execution of sale deed and the Will came to the notice of the plaintiff only when the defendant had appeared in the witness box as his own witness. Thus, relying upon Dondapati Narayana reddys case (supra) that rules governing the pleadings and leading of evidence has been incorporated in the interests of justice to avoid the multiplicity of litigation, the present is the case where the trial court has rightly exercised the discretion by allowing the amendment. The proposed amendment, therefore cannot be termed as unjust. 9. It has also been held in B. K. N. Pillai v. P. Pillai, that the power to allow the amendments is wide and can be exercised at any stage of the proceedings in the interest of justice. As regards of plea of limitation, the petitioner, of course will be at liberty to raise the objection which couid be made a subject matter of the issue as held in Raghu Thllak D. John V/s. S. Rayappan and others, as under- ". . . . The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought for by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in para 8 (a) to 8 (f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case, the plea of limitation being disputed could be made subject matter of the issue after allowing the amendment prayed for. " 10. In view of the aforesaid, no case is made out for interference with the impugned order. Revision dismissed.