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2006 DIGILAW 138 (PNJ)

Gurmit Ram v. Paramjit Singh

2006-01-17

M.M.KUMAR

body2006
JUDGMENT M.M. Kumar, J. - This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenges the order dated 18.1.1999, passed by the trial Court allowing an application filed under Order 6, Rule 17 read with Section 151 of the Code, which was preferred by the plaintiff-respondent No. 1. 2. Brief facts of the case are that the plaintiff-respondent No. 1 filed a Civil Suit No. 406 of 1996 on 23.12.1996, for declaration to the effect that he is co-owner in respect of the suit property being a co-sharer. The defendant-appellant had filed written statement. Thereafter issues were framed and the case was fixed for 14.9.1988 for evidence of the plaintiff-respondent No. 1, who in fact was granted last opportunity to bring his entire evidence at his own responsibility. He failed to produce any evidence and the case was adjourned to 12.11.1998 on payment of Rs. 50/- as costs. It was at this stage that an application for amendment of the suit was filed claiming exclusive ownership in respect of the house in question. 3. In the application it was claimed that for want of proper legal advise and inadvertence the plaintiff-respondent No. 1 could not claim exclusive ownership of the house in question. He further asserted that the relevant writings between the parties and the father of the plaintiff-respondent No. 1 could not be brought on record. It is appropriate to mention that the litigation is between the brothers who are sons of one Bachna Ram and his widow Smt. Rakho. The plaintiff-respondent No. 1 further claimed that the proposed amendment would serve the interest of justice. However, the defendant-petitioner opposed the application by pleading that once the plaintiff-respondent No. 1 had conceded the defendant-petitioner to be a co- sharer then permitting him to plead that he was exclusive owner, would amount to withdrawal of the admission made in the earlier plaint. It was further claimed that the amendment in fact is the result of change in counsel who has virtually substituted a new case in place of the old one by changing the entire plaint. The trial Court after hearing the arguments allowed the application by imposing costs of Rs. 400/- by observing as under :- "5. I have considered the submissions addressed by both the learned counsel for the parties. The trial Court after hearing the arguments allowed the application by imposing costs of Rs. 400/- by observing as under :- "5. I have considered the submissions addressed by both the learned counsel for the parties. The plaintiff has claimed his ownership over the whole house and he should be permitted to plead his case so that the defendants may not be taken by surprise. Defendants can be compensated in terms of money for the delay on behalf of plaintiff. The plaintiff is yet to record his statement and he can be put to cross-examination by the defendants to put them own case. The law of amendment is very liberal. Application is accepted subject to payment of Rs. 400/- as costs. Amended plaint is already on the file. Written statement be filed on 3.2.99. It is made clear that the plaintiff has already availed number of opportunities and after the framing of issues, the plaintiff will be given only two opportunities and he will ensure the presence of witnesses positively." 4. Having heard learned counsel for the parties, I am of the considered view that there is no merit in this petition and the same is liable to be dismissed. The plaintiff-respondent No. 1 in the earlier suit undoubtedly had made the prayer that he has been a co-sharer along with the defendant- petitioner and defendant-respondent No. 2 in the house in question. He has also claimed permanent injunction restraining the defendant-petitioner and defendant-respondent No. 2 from interfering in his peaceful possession over the first floor of the aforementioned house. The prayer made by the plaintiff-respondent No. 1 in the original plaint reads as under :- "Suit for declaration that the plaintiff is a co-sharer alongwith defendant Nos. 1 and 2 in the house which is situated in village Bharta- Ganeshpur, P.S. Mahilpur, Tehsil Garhshankar and bounded as below and marked as ABCD in the site-plan attached herewith. East :-, House of Shankar Dass West :-, House of Amar Singh North :, Property of Thakedar South :-, Street with consequential relief of permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the first floor of the above-said house till its duly partitioned in the Court of Law." 5. East :-, House of Shankar Dass West :-, House of Amar Singh North :, Property of Thakedar South :-, Street with consequential relief of permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the first floor of the above-said house till its duly partitioned in the Court of Law." 5. It is true that the plaintiff-respondent No. 1 has claimed only a part of the house and by way of amendment he has prayed for changing the prayer by claiming exclusive possession and the prayer now made, reads as under :- "Suit for declaration to the effect that the plaintiff is the exclusive owner in possession of the house shown in the plan attached, situated in the area of village Bharta Ganeshpur, P.S. Mahilpur, Tehsil Garhshankar, Distt. Hoshiarpur marked as ABCD in the plan attached and bounded as under :- East :-, House of Shankar Dass West :-, House of Amar Singh North :, Property of one Thakedar South :-, Street with a consequential relief of permanent injunction restraining the defendants from interfering into the peaceful possession of the plaintiff over the house shown red in the plan attached." 6. A similar question arose before this Court in the case of Attar Singh v. Surinder Singh, wherein an area was sought to be added to the already claimed area in the original plaint and such an amendment was not considered as withdrawal of an admission. After placing reliance on a judgment of the Supreme Court in the case of Prem Bakshi and others v. Dharam Dev & others, :(2002)2 SCC 2, this Court observed as under:- "5. Having heard learned counsel for the parties, I am the considered view that the amendment sought by way of adding paragraph 3A would not amount to withdrawal of an admission as incorporated by way of amendment i.e. the area of the plot regarding which the admission has not been made. Moreover, the amendment can be allowed at any stage including the appellate stage. The Honble Supreme Court in the case of "Prem Bakshi and others v. Dharam Dev and others", JT 2002(1) SC 34 : has held that amendment of pleadings should ordinarily be allowed because the other side is not prejudiced since opportunity to controvert the averments made by way of amendment is afforded. The Honble Supreme Court in the case of "Prem Bakshi and others v. Dharam Dev and others", JT 2002(1) SC 34 : has held that amendment of pleadings should ordinarily be allowed because the other side is not prejudiced since opportunity to controvert the averments made by way of amendment is afforded. It is only subject to one condition that such an amendment is considered necessary for deciding the issues raised in the suit. The amendment sought to be incorporated by way of adding para 3A fulfils that condition too." 7. In the present case also instead of claiming the area of the first floor, the plaintiff-respondent No. 1 is claiming his right over the area of the whole house exclusively. Therefore, it cannot be considered as an admission as is sought to be projected by the learned counsel for the defendant-petitioner. In any case the proceedings are at initial stage and the delay, if any, caused by the amendment can be adequately compensated by imposition of costs, which stand already imposed in the impugned order. Therefore, no interference of this Court in exercise of jurisdiction order Section 115 of the Code would be warranted. For the reasons stated above, this petition fails and the same is dismissed. Parties though their counsel set are directed to appear before the trial Court on 6.2.2006. Petition dismissed.