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2005 DIGILAW 17 (PNJ)

Urmila Devi v. Nar Singh

2005-01-06

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This petition filed under Article 227 of the Constitution is directed against order dated 9.10.2004 passed by the Additional District Judge, Chandigarh declining the application of the defendant-petitioner in which prayer was made for amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for brevit, the Code). It is appropriate to mention that the defendant-petitioner has filed an appeal against the judgment and decree dated 16.8.2001 passed by the Civil Judge (Jr. Division), Union Territory, Chandigarh in Civil Suit No. 26 of 1987 whereby the suit of the plaintiff respondents has been decreed against the defendant-appellant. During the pendency of the appeal, prayer for amendment of the written statement has been made. The following amendments have been sought: (a) that the non-joinder of Thakurdwara by the plaintiff-respondents is fatal to the suit of the plaintiff-respondents as it was a necessary party. The aforementioned ground was sought to be set up on the plea that Thakurdwara to whom the suit property was gifted by the ancestors of the plaintiff-respondents in 19th Century and the land revenue was remitted; (b) that the property being maintained by Mahants of Bairagi Ramandi Sect and presently Mahant Sukhdass Chela Mahant Raghubir Dass Chela Mahant Laxmi Dass Mahant Chela Harnam Dass is the present Mahant and Urmila Devi is managing the suit property as member of the family of Mahants. 2. The learned Additional District Judge considering the rival contentions has dismissed the application by recording the impugned order, the operative part of which reads as under:- "It is of utmost importance to be aware of the fact that apart from the suit filed against her by Nar Singh and others, Kamla Devi has also filed a suit against Nar Singh and others. In that suit of hers Kamla Devi did not plead that suit property was gifted to Thakurdwara by ancestors of Nar Singh and others, rather her version was of her husband Luxmi Dass being one of the muafidaars qua the land in dispute. It is urged by learned counsel for the plaintiff that without asking for amendment of her plaint in the connected suit, which has been consolidated with this suit, the plea sought to be added by way of amendment in the written statement would be at variance with her pleadings in the other suit. It is urged by learned counsel for the plaintiff that without asking for amendment of her plaint in the connected suit, which has been consolidated with this suit, the plea sought to be added by way of amendment in the written statement would be at variance with her pleadings in the other suit. Inadvertence and illiteracy are the two reasons given by Urmila Devi which prevented Kamla Devi and her from taking this plea earlier. Inadvertence is anti-thesis to due diligence and as the amended provisions of C.P.C. require that no amendment is to be allowed unless the Court comes to the conclusion that the matter sought to be raised by way of amendment could not be raised by the concerned party inspite of due diligence, the proposed amendment based upon inadvertence pleadings perfunctorily only that inspite due diligence such matter could not be raised earlier, I find hardly any worthwhile reason to conclude in terms of the requisites laid down by the amended C.P.C. In Shakuntala v. Devendra Kumar Mool Chand, 2003(3) C.C.C. 167. The Honourable Rajasthan High Court has held that in view of the amended provisions of Order 6 Rule 17 C.P.C. no amendment seems possible at appellate stage. In Inderpal Singh v. Bankey Bihari, 2003(3) C.C.C. 707 the Honourable High Court of Punjab and Haryana has held that no amendment of pleadings is to be permitted after the commencement of trial unless cogent reasons are shown by such a party that the matter sought to be incorporated by amendment was not within his knowledge or could not be ascertained with due diligence. It is only ritually pleaded by the applicant that inspite of due diligence she could not take the plea she intends to introduce by way of amendment. Illiteracy is not the ground which can be forwarded by her which incapacitated her from taking such a plea earlier than now. She was always assisted by lawyer/counsel and if she was earlier illiterate she had not now turned literate enough to know intricacies of law. Illiteracy is not the ground which can be forwarded by her which incapacitated her from taking such a plea earlier than now. She was always assisted by lawyer/counsel and if she was earlier illiterate she had not now turned literate enough to know intricacies of law. Although delay alone is not considered enough to decline a relief of amendment if it is otherwise found justifiable yet when the very intention appears to drag the litigation further, in attempt to bring the clock back to the year 1987 and the proceedings to square one, despite the fact that it is already 14 years old and the applicant has ended up losing in the trial Court and has waited for about three years even in the Appellate Court before coming up with this application only when the appeal came up for arguments, the intention does not sound bona fide and for this reason and for the reasons already described above, the application for amendment in written statement at appellate stage is found without merit and is declined, without meaning to express any opinion on merits of the case." 3. Mr. Vijay Lath, learned counsel for the defendant-petitioner has confined his prayer only to preliminary objection that Thakurdwara was required to be impleaded as a party respondent as it was a necessary party and non-impleadment of the same would be fatal to their suit. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Sampath Kumar v. Ayyakannu and Anr., 2002(3) Civil Court Cases 364. 4. Having heard the learned counsel at a considerable length, I am not able to persuade myself to accept the submissions made by the learned counsel because the suit was filed in the year 1987 and after more than 14 years the judgment and decree was passed by the learned Civil Judge on 16.8.2001. Thereafter, the appeal was preferred being C.A. No. 45 on 26.9.2001. During this period, no objection with regard to requirement of impleadment of necessary party was taken nor any application was filed. However, for the first time an application was filed on 27.1.2004 when the case was posted for arguments before the learned Additional District Judge. Such a conduct does not augur well the judicial system especially when the rights of the plaintiff-respondents have crystalised. However, for the first time an application was filed on 27.1.2004 when the case was posted for arguments before the learned Additional District Judge. Such a conduct does not augur well the judicial system especially when the rights of the plaintiff-respondents have crystalised. I am in agreement with the observations made by the learned Additional District Judge that the prayer made by the defendant-petitioner lacks bona fide and is a device to delay the decision of the appeal. Therefore, the instant petition is liable to be dismissed. 5. Even otherwise I am of the view that if the defendant-petitioner is permitted to implead Thakurdwara as a party respondent, it would necessarily result into a de novo trial. It is a settled proposition of law that if the resultant effect of impleadment of a party is a denovo trial, then such a party should not be permitted to be impleaded. For the aforementioned view reliance can be placed on a judgment of the Supreme Court in the case of Anokhe Lal v. Radhamohan Bansal, A.I.R. 1991 S.C. 257. Moreover, if no objection has been raised in the written statement nor any argument was addressed when the judgment and decree by trial Court has been passed, then the objection is deemed to be waived. For the aforementioned view reliance could be placed on a judgment of the Supreme Court in the case of Behari Lal v. Bhuri Devi, A.I.R. 1997 S.C. 1879; 1997(2) S.C.C. 279. 6. It is also well settled that while exercising jurisdiction under Article 227 of the Constitution this could interfere in the orders of the Subordinate Courts only if grave and manifest injustice is shown to have been caused. The aforementioned view has been taken by the Supreme Court in the case of Ouseph Mathus v. M. Abdul Khadir, A.I.R. 2002 S.C. 110; 2002(1) S.C.C. 319 and Virendra Kashinath Ayat and Anr. v. Vinayak N. Noshi and Ors., A.I.R. 1999 S.C. 162;1999(1) S.C.C. 47. No such grave and manifest injustice is shown to have been caused to the defendant-petitioner warranting exercise of jurisdiction under Article 227 of the Constitution. In fact allowing the impleadment of a party at this stage would result into grave injustice to the plaintiff-respondents who have been awaiting for justice since 1987. 7. No such grave and manifest injustice is shown to have been caused to the defendant-petitioner warranting exercise of jurisdiction under Article 227 of the Constitution. In fact allowing the impleadment of a party at this stage would result into grave injustice to the plaintiff-respondents who have been awaiting for justice since 1987. 7. The judgment of the Supreme Court in Sampath Kumars case (supra) on which reliance has been placed by the learned counsel does not require any detailed examination because in that case it has been held that delay alone is not fatal for granting prayer for amendment under Order VI Rule 7 of the Code provided the amendment sought would not be hit by the law of limitation. It has further been held that the amended plaint was deemed to be filed on the date of filing the application for amendment. However, the aforementioned enunciated of law has no application on the facts of the present case because in this case more than 17 years ago a suit was filed and the objection with regard to non-joining of necessary parties was available at that time. The objection is sought to be taken after the right of the parties have already crystalised by virtue of judgment and decree dated 16.8.2001. Therefore, I do not find any substance in the aforementioned argument. For the aforementioned reasons, this petition fails and the same is dismissed with costs.