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2003 DIGILAW 1299 (PNJ)

Ved Parkash v. Parshottam Dass

2003-09-16

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This is plaintiffs petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging order dated 25.7.2000 passed by the learned Additional District Judge, Bhatinda. The application filed by the plaintiff-petitioner under Order 6 Rule 17 of the Code during the pendency of appeal preferred by him against the judgment and decree dated 29.11.1995 has been dismissed by the learned Additional District Judge. 2. Brief facts of the case which have led to the filing of the instant petition are that the plaintiff-petitioner filed a civil suit seeking permanent injunction against defendant-respondent 2 who is his brother and one Parshottam Dass restraining them from alienating half share of House No. 1504 situated in Gali No. 2, Nai Basti, Bhatinda. The claim of the plaintiff- petitioner was based on an alleged family settlement. It was further claimed that defendant-respondent 2 Dharam Paul who had entered into an agreement to sell the disputed house in favour of defendant-respondent 1 Parshottam Dass had no right to alienate half share which has vested in the plaintiff- appellant by virtue of the family settlement. 3. Plaintiff-respondent 2 Dharam Paul contested the suit and admitted the claim of the plaintiff-appellant but the same was denied by Parshottam Dass defendant-respondent 1. During the pendency of the aforementioned suit, Parshottam Dass filed another suit seeking specific performance of the agreement to sell against Dharam Paul defendant-respondent 2 which has been decree in his favour. On 29.11.1995 the suit filed by the plaintiff-appellant was dismissed and an appeal was preferred before the appellate Court. During the pendency of the appeal, defendant-respondent 2 Dharam Paul executed a sale deed in favour of defendant-respondent 1 Parshottam Dass and one Mohan Lal. The aforementioned Parshottam Dass and Mohan Lal filed a suit for possession against Dharam Paul. However, it is claimed that the moment he came to know about execution of the sale deed dated 1.7.1997, he filed an application on 30.9.1997 for issuance of a direction that the said sale deed in favour of defendant-respondent 1 Parshottam Dass would be sub-survivent to the right of the plaintiff-petitioner as to the title in respect of the house. However, the aforementioned application was withdrawn and another application under Order 6 Rule 17 of the Code was filed. However, the aforementioned application was withdrawn and another application under Order 6 Rule 17 of the Code was filed. The application filed under Order 6 Rule 17 of the Code has been dismissed by the learned Additional District Judge and operative part of the order reads as under :- "After hearing the learned Counsel for the parties and examination of record, the prayer of the appellant made through this application fails, being without a sufficient merit. A perusal of the record available on the file including the summoned suit file goes to show that a litigation between the parties is pending for the last more than 11 years since 23.5.1989 and through filing his suit, the appellant never claimed any relief of a declaration regarding his title or interest, if any, qua the disputed house. Even now he has not sought to challenge the said sale deed dated 1.7.1997, executed by respondent No. 1 in favour of respondent No. 2 and his brother, Mohan Lal, on any ground, nor he has sought to get the same declared as null and void. It is also to be noted that respondent No. 1 executed the said sale deed 1.7.1997 regarding the disputed house in favour of respondent No. 2 and his brother, Mohan Lal, in compliance of a decree dated 8.5.1995 made by the competent Court for specific performance of the agreement to sell dated 25.4.1989. As such, it is even quite doubtful if the appellant through this suit is competent to challenge the said decree or the consequent sale deed dated 1.7.1977 made and executed by respondent No. 1. There was nothing to prevent the appellant from claiming the relief of a declaration regarding the disputed property or to challenge the said sale deed dated 1.7.1997 immediately if he intended to do so and he was not expected at all to wait for a period of about 30 months to file such an application. He has also filed another application under Section 52 of the Transfer of Property Act regarding the said sale deed which may cover the relief if any, to which he is found entitled on this account. No doubt, the law relating to the amendment of pleadings of late has been quite liberal, but at the same time, the abuse of this provision is also to be checked by the Court. No doubt, the law relating to the amendment of pleadings of late has been quite liberal, but at the same time, the abuse of this provision is also to be checked by the Court. A perusal of the record, as discussed above, makes it quite clear that the appellant has filed the present application merely with a mala fide intention to delay on the proceedings for an indefinite period of time and to get the case reopened for fresh and de novo trial, for which he cannot be allowed especially when the litigation involved in this suit has already been pending for the last more than 11 years since 23.5.1989 and is over delayed nor as has been held by our Honble High Court through authorities, Kesho Ram Passey v. Dr. P.C. Tandon and another, AIR 1952 Punjab 221 and Piari Bai v. Smt. Jamna Bai, 1998(3) PLR 510 (P&H), the amendment based on subsequent cause of action, which may amount to a re-trial of the case can be allowed. In support of this view another ruling B. Mahalakshmi v. D.V. Nagalakshmi Ammal and another, 1996(2) Civil L.J. 777, may also be referred to." 4. Mr. Rajneesh Bansal, learned counsel for the petitioner has argued that once the claim of the petitioner has been admitted by defendant-respondent 2 Dharam Paul (now represented by his legal representatives), there was no occasion for the plaintiff-petitioner to claim a relief of declaration with regard to his title. The learned counsel has further argued that before 1.7.1997, the agreement to sell would not have conferred any title or right of defendant-respondent 1 Parshottam Dass. The learned counsel has also pointed out that the plaintiff-petitioner has filed an application under Order 1 Rule 10 of the Code for becoming a party in the suit filed by plaintiff-responedent 1 Parshottam Dass against defendant-respondent 2 Dharam Paul but he was not allowed to join and his application was dismissed. Therefore, the findings recorded in the aforementioned judgment and decree could not bind him. According to the learned counsel, the proposed amendment goes to the very roots of the matter and would enable the Court to finally, completely and effectively adjudicate upon the controversy raised between the parties. Therefore, the findings recorded in the aforementioned judgment and decree could not bind him. According to the learned counsel, the proposed amendment goes to the very roots of the matter and would enable the Court to finally, completely and effectively adjudicate upon the controversy raised between the parties. Even otherwise, the learned counsel has pointed out that the judgment and decree passed in the suit filed by Parshottam Dass defendant-respondent 1 would attract the application of Section 52 of the Transfer of Property Act, 1882 laying down the principle of lis pendens. 5. Mr. Binderjit Singh, learned counsel for defendant-respondent 1 has argued that the application filed by the plaintiff-petitioner has been rightly dismissed on the ground of delay. He has further pointed out that once it is accepted that the judgment and decree in favour of defendant-respondent 1 was passed on 8.5.1995 by the Court of Additional Senior Sub Judge, Bhatinda for specific performance of the agreement, the date (1.7.1997) of execution of sale deed cannot be made the basis for filing the application under Order 6 Rule 17 of the Code. The learned counsel has also submitted that the plaintiff-petitioner has never sought the relief of ownership by filing the suit which was simply for permanent injunction. The application under Order 6 Rule 17 of the Code has been filed on 8.12.1999 which is after a period of about 2-1/2 years, shows that the plaintiff-petitioner wishes to delay the proceedings. 6. After hearing learned counsel for the parties at a considerable length and perusing the orders of the Courts below, I am of the considered view that the sale deed dated 1.7.1997 based on the judgment and decree dated 8.5.2995 in favour of defendant-respondent 1 Parshottam Dass could not have been challenged by the plaintiff-petitioner at any other stage. His application to become party in the civil suit filed by Parshottam Dass defendant-respondent 1 was also dismissed and the same suit has been decreed on 8.5.1995 i.e. Civil Suit No. 382 of 2.6.1989. The delay in challenging the afore-mentioned sale deed would not constitute a basis for rejection of his prayer for amendment of the plaint because the change in circumstances after the filing of the suit and decree can always be pleaded by seeking suitable amendment. The delay in challenging the afore-mentioned sale deed would not constitute a basis for rejection of his prayer for amendment of the plaint because the change in circumstances after the filing of the suit and decree can always be pleaded by seeking suitable amendment. This principle has been laid down in Nair Service Society Ltd. v. K.C. Alexandar and others, AIR 1968 SC 165 and Estralla Rubber v. Dass Estate (P) Ltd., (2001)8 SCC 97. In later judgment, their Lordships of the Supreme Court have observed as under :- "It is fairly settled in law that the amendment of pleadings under Order 6 Rule 17 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 amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations, a time-barred claim cannot be allowed to be raised by proposing an amendment to take away the valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side. This Court in a recent judgment in B.K. Narayana Pillai v. Parameswaran Pillai [(2001) 1 SCC 712] after referring to a number of decisions, in para 3 has stated, thus : (SCC p. 715) "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be excised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. It is true that the amendment cannot be claimed as matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation." In para 4 of the same judgment this Court has quoted the following passage from the judgment in A.K. Gupta and Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96] (AIR pp. 97-98, para 7): "The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neal [(1887) 119 QBD 394]. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitations : See Charan Das v. Amir Khan [AIR 1921 PC 50] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357]". This Court in the same judgment further observed that the principles applicable to the amendment of the written statement and that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn." 7. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn." 7. Moreover, the appellate Court was not to decide the application separately as the same was required to be decided while hearing arguments in the main appeal because it is only at that stage, it could have determined whether the amendment was necessary for effectively deciding the controversy raised between the parties. 8. Be that as it may, the application filed by the plaintiff-petitioner could not have been dismissed and the right of the plaintiff-petitioner could not have been snatched to enable him to challenge the sale deed which has prejudiced his rights during the pendency of the suit. 9. For the reasons recorded above, this petition succeeds. The impugned orderd dated 25.7.2000 is set aside. The application of the plaintiff-petitioner dated 8.12.1999 is allowed and the Appellate Court is directed to proceed in accordance with law. Petition allowed.