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2003 DIGILAW 31 (HP)

MEHAR SINGH v. BILWA MANGAL

2003-03-05

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This order will dispose of these two revision petitions as both arise out of similar orders made by the learned Sub Judge-(II), Dharamshala on 5th March, 2002. 2. It appears, Bilwa Mangal, plaintiff in both the cases, filed a suit for declaration to the effect that plaintiff after the death of his mother was owner in possession of the suit property (in both the cases) and the entry of tenancy in favour of the defendant Parshotam Chand in Civil Suit No. 135/98 and Mehar Singh in Civil Suit No. 342/99/98 was wrong, illegal, unauthorised and a paper entry. Prayer for injunction restraining the defendant from interfering in the peaceful possession of the plaintiff was also made. According to the plaintiff, defendant was never inducted as tenant over the suit property. Defendant has no right, title or interest in the property The land was earlier mortgaged which was redeemed by the plaintiff and possession was delivered by a Rapat Rojnamcha to the predecessor of the plaintiff on 18th September, 1992. In alternative, a prayer was made that if due to some legal or factual defect plaintiff was not found to be in possession, then a decree for possession of the land may be passed in his favour. 3. Defendant in his written statement took a stand that he was in possession of the suit property since the time of his father and tenancy was created by the owner/mortgagor prior to the creation of the mortgage and therefore, there was no question of plaintiff being owner in possession of the suit property and defendant having been dispossessed. At the most symbolic possession was delivered to the owner of the property. 4. After the parties closed evidence, defendant moved an application to amend para-3 of the written statement to add : "in any case the defendant fails to prove that the tenancy was created in his favour by the mortgagors, then induction of the defendant and his predecessors as tenant in the suit land was an act of good management and prudence on the part of the mortgagees and the defendant has become owner of the suit land by operation of law". 5. 5. Plaintiff resisted the application on the ground that the defendant never claimed tenancy under the mortgagor in the written statement filed by the defendant and at this stage of the proceedings inconsistent plea cannot be allowed to be raised. 6. Learned trial Judge vide his impugned orders dis-allowed the prayer holding that amendment would amount to substitution of the pleadings by way of amendment which was not permissible under the law. The trial Judge, particularly, noticed that in the written statement defendant never claimed tenancy under the mortgagor. Any amendment at such a belated stage, when the evidence of the parties stood closed, would "show that new case is sought to be set up by the defendant to counter his earlier pleadings". 7. Dis-satisfied, the defendant-petitioner is in revision petition. 8. I have heard Mr. Sanjeev Kuthiala, learned Counsel for the defendant-petitioner and Mr. K.D. Sood, learned Counsel for the plaintiff-respondent. 9. Mr. Kuthiala referred to Shri Bilwa Mangal v. Shri Deemanu Ram and others, 2001 (1) SLJ 400, whereby in a similar case of the same plaintiff (Bilwa Mangal) similar plea was permitted to be raised, by an amendment of the written statement, in first appeal by the learned District Judge, Kangra at Dharamshala. By this judgment learned District Judge set aside the judgment and decree of the trial Court and remanded the case for disposal afresh after allowing the amendment of the written statement and framing an additional issue to include similar plea, as is being sought to be raised by amendment in these two petitions. The Division Bench of this Court, in an appeal, in para-11 of the judgment, took a view that the amendment of the written statement to raise alternative plea that tenancy if not found to have been created by the owner prior to the creation of mortgage then it was created by the mortgagees as an act of good management to the knowledge and with the consent and approval by the mortgagors, was permissible. 10. Mr. Sood, learned Counsel for the respondent, strenuously urges that the plea sought to be raised by the defendant-petitioner negates the plea, taken by the defendant in his written statement and such plea cannot be allowed to be raised, particularly, at this belated stage. 10. Mr. Sood, learned Counsel for the respondent, strenuously urges that the plea sought to be raised by the defendant-petitioner negates the plea, taken by the defendant in his written statement and such plea cannot be allowed to be raised, particularly, at this belated stage. He also impressed that the application for the amendment of the written statement was filed at the fag end of the case when the case was ripe for arguments to delay the proceedings and to take undue advantage. 11. As noticed earlier, the Division Bench of this Court in Deemanu Ram and others in similar circumstances took a view that such an amendment is permissible under Order 6 Rule 17 of the Code of Civil Procedure. There can be no justification to depart from the view taken by the Division Bench as pointed out by the Apex Court in Jayanti Roy v. Dass Estate Pvt. Ltd., (2002) 5 SCC 175. 12. This apart, the Supreme Court in B.K. Narayana. Pillai v. Parameswaran Pillai and another, (2000) 1 SCC 712, held that under Order 6 Rule 17 of the Code of Civil Procedure the power to allow the amendment of the pleadings is wide and can be exercised at any stage of the proceedings in the interests of justice. True it is, the amendment of pleading cannot be claimed as a matter of right under all circumstances. Nevertheless, the Courts while deciding such prayers should not adopt a hypertechnical approach. The apex Court observed : "liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs." 13. In para-4 of the judgment Their Lordships observed : "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 injustice and that any admission made in favour of the plaintiff is not withdrawn. AH amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original Us was raised or defence taken." 14. AH amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original Us was raised or defence taken." 14. In the present case the plea sought to be raised by the defendant cannot be said to be destructive of the plea taken in the written statement that tenancy was created by the mortgagor. It is in alternative, the defendant seeks to raise plea that if mortgage by the owner is not proved then such a tenancy was created by the mortgagee with the consent of the mortgagor for good and prudent management of the property. 15. In the facts and circumstances of this case, I allow both the petitions. The impugned orders of the learned trial Judge dated 5th March, 2002 are set aside. The amendment applications are allowed subject to payment of Rs. 2,500 as costs in each case. Learned Counsel for the respondent states that out of the costs payable to the respondent, Rs. 1,000 in each case may be deposited with the Advocates Welfare Fund. Such deposit shall be made on or before the next date of hearing before the trial Court. Learned trial Court shall make all-out endeavour to dispose of the case at an early date. 16. The parties are directed to appear before the trial Court on 7th April, 2003. Record of both the cases shall be remitted back to the trial Court immediately so as to reach there well before the date fixed.