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2004 DIGILAW 1247 (RAJ)

Dhanpat Ram v. Indra Chand

2004-09-02

P.C.TATIA

body2004
Honble TATIA, J.–Heard learned counsel for the parties. (2). This appeal is directed against the order dated 21st Oct., 2003 by which the first appellate court after allowing the amendment of the plaint set aside the judgment and decree of the Trial Court dated 1st Sept., 2001 and remanded the matter back to the Trial Court for deciding the suit afresh after framing the issues de novo. (3). Learned counsel for the appellant submitted that the court below has committed serious illegality in allowing the amendment application because of the reasons that the appellants want to take absolutely contradictory plea by amending the plaint from the pleas, which they took originally. It is also submitted that the amendment has been sought by the plaintiff after inordinate delay and in view of the proviso added by amendment of the Civil Procedure Code to the Order 6 Rule 17 CPC, the amendment can be allowed by the court upon finding that even after due diligence, the party could not raise the matter before the commencement of the trial. In this case, the plaintiff sought amendment of the plaint after the decision of the suit by the Trial Court and further more, the plaintiff did not submit application for amendment of the written statement alongwith the memorandum of appeal. It is also submitted that facts were in the knowledge of the plaintiff from the time before filing of the suit itself. Therefore, the amendment should not have been allowed by the appellate court. Learned counsel for the appellant relied upon the judgment of the Honble Supreme Court delivered in the case of Shrimoni Gurdwara Committee vs. Jaswant Singh (1), and judgment of this court delivered in the case of Prem Chand vs. Thakurji Shri Adinathji (2). (4). I considered the submissions of learned counsel for the appellant and perused the record. It will be worthwhile to mention a few facts of the case of the plaintiff. The plaintiff filed the suit for declaration and injunction against the defendants-appellants alleging therein that the property situated as Ahata No. 29 having measurement of 77 1/2 x 50 at `B Block of Gajsinghpura initially was the ancestral property of Polaram, Redaram and Birbalram. These persons sold the property to the plaintiffs father in the year 1965. The plaintiffs father invested money and constructed boundary wall and one small room. These persons sold the property to the plaintiffs father in the year 1965. The plaintiffs father invested money and constructed boundary wall and one small room. In the year 1981, the plaintiff raised constructions of Bedroom, kitchen, two Baramda and reconstructed the boundary wall. The plaintiff claimed that plaintiff is in possession of the property since last more than 12 years. It is also submitted that plaintiff also received notices from the Municipal Board of the area objecting raising of construction by the plaintiff. On these facts and when plaintiff was threatened by the defendants he filed the suit for declaration and injunction against the defendants. (5). The defendants admitted about the identity of the property and further admitted that the property was originally belonging to Polaram, Redaram and Birbalram. However, defendants submitted that Polaram, Birbalram and Redaram died in the year 1947, 1945 and 1980 respectively. Therefore, no sale deed could have been executed by Birbalram and Polaram in the year 1965. The defendants are claiming themselves to be the descedents of the persons named above as owner of the property. However, the defendants admitted that plaintiff is in possession of the property and also impliedly admitted that if there is water and electric connection, those were taken by the plaintiff. According to defendants because of good relations between the plaintiff and the defendants and at the request of the plaintiff, the defendants gave possession of the property to the plaintiff in the year 1981 and, therefore, the plaintiff is in possession of the property. According to the defendants since it was a permissive possession and though more than 12 years have passed but the possession is not claimed to be hostile against the title of the defendants, therefore, the plaintiff cannot be declared as owner of the property on the plea of adverse possession. The defendants submitted counter claim and sought relief of decree for possession of the property from the plaintiff. (6). In the Trial Court, the plaintiff produced the copy of the sale deed executed by Redaram, Dhanpatram and Rampartap dated 17.05.1962 by which the property in dispute was sold to Likhmichand and also produced copy of the sale deed executed by Likhmichand in favour of the plaintiffs father dated 24.08.1962. These documents were produced in court on 7th Oct., 1997 and they were tendered in evidence on 23rd Jan., 1999 and 15.05.1999. (7). These documents were produced in court on 7th Oct., 1997 and they were tendered in evidence on 23rd Jan., 1999 and 15.05.1999. (7). The Trial Court dismissed the suit of the plaintiff and decreed the counter claim of the defendants by judgment and decree dated 1st Sept., 2001. Being aggrieved against the said judgment and decree of the Trial Court, the plaintiff-respondent preferred regular first appeal. In the appeal, the plaintiff submitted application to amend the plaint. The plaintiff submitted that plaintiffs father expired in the year 1969 and at the time of death of plaintiffs father, the plaintiff was of the age of only 10 years. The plaintiff submitted that he had no knowledge of the full facts about the title of the property. He obtained the certified copies of the sale deed on 27.08.1998 and 27th Sept., 1998. The plaintiff by amendment wants to plead that the property, whose identity is not in dispute, was in the ownership of Redaram, Dhanpatrai and Rampartap and they sold it to Likhmichand by registered sale deed dated 17.05.1960. Likhmichand sold the property to plaintiffs father by registered sale deed dated 24.08.1962. According to plaintiff since plaintiff had no knowledge of the true and correct facts, therefore, mistake crept in the pleading. The plaintiff further pleaded that by amendment, the nature of the suit will not be changed and amendment will be in the interest of justice as plaintiffs original case is that his father purchased the property in dispute and become owner of the property and after amendment of the plaint the stand of the plaintiff will be same. The first appellate court allowed the amendment holding that the plaintiff claimed themselves to be owner of the property and he claimed the title to the property as it was purchased by plaintiffs father. The first appellate court considered the Ex.22 and Ex.24, sale deeds and held that by allowing amendment, the nature of the suit will not be changed and case of the defendants will not be prejudiced, rather by permitting the amendment, the court will be able to reach to the right conclusion. (8). It is true that the plaintiff sought amendment after delay. The suit was filed in the year 1996. The documents came in the knowledge of the plaintiff in the year 1998. His evidence was recorded in the year 1999. (8). It is true that the plaintiff sought amendment after delay. The suit was filed in the year 1996. The documents came in the knowledge of the plaintiff in the year 1998. His evidence was recorded in the year 1999. In a matter of permitting amendment, the delay, normally is not a good ground for rejecting the application for amendment of the plaint. The facts mentioned above clearly reveal that the documents were already on record. The plaintiffs plea was there that his father purchased the property. who were the owner of the property is not in dispute in view of the admission of the defendants in the written statement itself. The purchase of the property by the plaintiffs father by a registered sale deed is the case of the plaintiff. He submitted the certified copy of the plaintiff. He submitted the certified copy of the sale deeds. Here in this case, plaintiff does not want to withdraw any admission made by him by amending the plaint. The plaintiff merely wants to explain the sequence by which plaintiffs father became owner of the property on the basis of the documents, which are not only on record, but has already been tendered in evidence by the plaintiff. The documents are registered documents and, therefore, it cannot be said that plaintiff wants to take some contradictory stand. The question relevant for the purpose of decision of the suit is whether the plaintiffs father was owner of the property by virtue of the sale deeds placed on record by the plaintiff. It will be worthwhile to mentioned here that the sale deed Ex.22 is dated 17.05.1962 by which one Likhmichand is said to became owner of the property. The plaintiffs father purchased the property by sale deed Ex.24, which is dated 24.08.1962. The plaintiff was of the age of 10 years at the time of death of his father. It will be worthwhile to mentioned here that the sale deed Ex.22 is dated 17.05.1962 by which one Likhmichand is said to became owner of the property. The plaintiffs father purchased the property by sale deed Ex.24, which is dated 24.08.1962. The plaintiff was of the age of 10 years at the time of death of his father. Likhmichand remained owner of the property for about three months only and in these circumstances, if the plaintiff stated that property was purchased by plaintiffs father directly from the persons named in the para No. 2 of the plaint and ignored to mention the fact relating to the sale of the property to Likhmichand and to the plaintiffs father by Likhmichand is a insignificant fact because Likhmichand remained owner of the property only for such a short period and the plaintiff neither born at that time or was minor and further he was minor at the time of death of his father. (9). It is settled law that when technicalities of law are pitted against the justice, the justice should be given a way to march ahead. In view of the above seeking amendment of the plaint at belated stage, cannot be a ground to punish the plaintiff to the extent so that he may loose his immovable property only on such a technical objection of delay. (10). The judgment relied upon by learned counsel for the appellant is of no help to the appellant-defendants because in the judgment delivered in the case of Shrimoni Gurdwara Committee (supra), the Honble Apex Court after finding that by amending, the party sought to take a plea, which will destructive to the original plea. In that case, the party sought to plead about his title after pleading gift in favour of some other. Therefore, the Honble Supreme Court held that such type of mutually destructive pleas cannot be taken. Therefore, the above judgment has no application to the facts of this case. (11). This court in the case of Prem Chand (supra), held that when facts were already in the knowledge of the party and are not based on subsequent events, the rejection of the amendment application was right. Therefore, the above judgment has no application to the facts of this case. (11). This court in the case of Prem Chand (supra), held that when facts were already in the knowledge of the party and are not based on subsequent events, the rejection of the amendment application was right. In this case, this court narrated the facts of the case and observed that suit was filed in the year 1977 and defendants evidence was closed in the year 1985 and defendant tried to prolong the proceedings by filing applications one after another. It is also submitted that application for amendment of the written statement earlier was rejected by the Trial Court and a revision petition was also dismissed by the Trial Court. The defendants evidence was also closed by the Trial Court and in revision petition, the defendant was permitted to produce his evidence, but instead of doing so, he submitted the amendment application. In the facts of the above case, this court refused to interfere in the revision petition filed by the defendant by observing that power to grant amendment of the pleadings is intended to serve the ends of justice and this power is not unfettered and does not mean that any application filed under Order 6 Rule 17 has necessarily to be allowed. In the facts, it is clear that the judgment relied upon by learned counsel for the appellant has no application to the facts of this case. (12). The proviso added to the Order 6 Rule 17 CPC provides that application for amendment shall not be allowed unless it is shown that inspite of due diligence the party could not have raised the issue before the commencement of the Trial. In this case, the plaintiff also pleaded about the fact relating to vesting of title in his father and also relied upon the two documents mentioned above. Therefore, it is not a case of taking new plea, but it is a case of inadvertently not writing the complete facts in the plaint. At the cost of repetition, it may be said that the plaintiff claimed title through original persons named in the plaint and also submitted the deeds by which the plaintiffs father alleged to have become owner of the property. (13). At the cost of repetition, it may be said that the plaintiff claimed title through original persons named in the plaint and also submitted the deeds by which the plaintiffs father alleged to have become owner of the property. (13). It will be worthwhile to take care from the judgment of the Honble Apex Court delivered in the case of Pankaja & Anr. vs. Yellappa (D) by L.Rs. And Ors. (3), wherein Honble Apex Court in judgment delivered on 5.08.2004 after the amendment of the Civil Procedure Code set aside the orders passed by the Civil Judge rejecting the application for amendment of the written statement vide order dated 2nd Sept., 2000 and the order of the High Court dated 22.03.2002 and allowed the amendment application after holding that factual details as regards title were already mentioned in plaint and plaintiff is seeking amendment in the plaint incorporating additional relief of declaration of title, cannot be said to be an amendment, has been set aside for claiming new relief. The Honble Apex Court even held that amendment sought after relief is barred by limitation and even if it has been sought after substantial delay even then the said amendment can be allowed in appropriate case if that subserves cause of justice and avoids further litigation. (14). In view of the above decision I am of the opinion that the court below was right in permitting the amendment in the above facts and circumstances of this case, which are taken note of in this judgment itself. (15). In view of the above discussion, I do not find any illegality in the order of the first appellate court allowing the amendment of the plaint. (16). I do not find any force in the submission of learned counsel for the appellant that the first appellate court should not have set aside the judgment and decree of the Trial Court and should not have remanded the matter back to the Trial Court for de novo trial because of the reason that in the peculiar facts of this case the events are required to be proved by producing evidence on the basis of the documents already available on record. The plaintiff does not want to lead more documentary evidence as is apparent from the stand taken by the plaintiff. The plaintiff does not want to lead more documentary evidence as is apparent from the stand taken by the plaintiff. In a case where the amendment of the plaint itself is allowed and plaintiff is permitted to plead facts about his title in a case for declaration of the title to the property, the appellate court may remand the matter back to the Trial Court for de novo trial in the light of the amendment looking to the facts of each case. After going through the facts of the case, I do not find that appellate court has committed any illegality in remanding the mater back to the Trial Court after setting aside the judgment and decree passed by the Trial Court because of the further reasons that the amendment sought by the plaintiff requires trial afresh. (17). In view of the above, I do not find any merit in this appeal and the same is hereby dismissed. The record of the Trial Court be sent to the Trial Court forthwith.