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2006 DIGILAW 3228 (PNJ)

Jagdish Chand Sharma v. Kanshi Ram

2006-08-09

VINOD K.SHARMA

body2006
Judgment 1. This order will dispose of Civil Revision Nos.1048 and 1049 of 1999 involving common questions of law and facts. For facility of reference facts have been taken from Civil Revision No.1048 of 1999. 2. The present revision petition has been filed against the order dated 19.12.1999 passed by the Additional District Judge (II), Faridabad, dismissing the application filed by the petitioner for amendment of the plaint before the Appellate court when the case was at the stage of arguments. 3. The petitioner herein filed a suit against the respondents for mandatory injunction seeking directions to defendant No.1 to remove unauthorised and illegal construction from the property in dispute and to restore the same in its original position. The suit filed by the petitioner was dismissed by the trial Court against which appeal was filed in the Court of Additional District Judge, Faridabad. When the case was at the stage of arguments on merits, an application under Order 6 Rule 17 read with Sec.151 of the Code of Civil Procedure was moved seeking amendment of the plaint in the following manner: That in fact Smt. Savitri widow of late Sh. Ami Chand died in the year 1972. It was on account of misapprehension and inadvertence that the plaintiff mention that Sh. Ami Chand died issueless without leaving any widow. It is even an admitted case of the parties that Smt. Savitri was alive at the time of death of her husband.11. Addition of the following sub-para at the end of para No.4 of the plaint: Till her death her share and the share of the parties to the suit in the residential property was undivided and not partitioned. The entire residential properties were partitioned after the death of Sh. Paltoo Ram and Smt. Javitri.12. Substitution of the following in place of main para No.6: That the aforesaid property was duly partitioned amongst the three sons of Sh. Paltoo Ram deceased, immediately after his death and of Smt. Javitri in the year 1976 in the following manners, keeping in view the compactness of respective share as well as convenience of the plaintiff and defendants for their egress and ingress in independent manner from their respective share in presence of Sh. Babu Ram Bnardwaj resident of village Banchari, who happens to be cousin of the parties. Babu Ram Bnardwaj resident of village Banchari, who happens to be cousin of the parties. On the ground that the aforesaid pleas could not taken in the plaint earlier on account of oversight. The proposed pleas are very material for deciding the controversy involved in the case between the parties. Proposed plea will not cause any prejudice to the respondent-defendant nor would charge (change ?) the nature of the case. Hence this application. 4. The application was opposed by the respondents. The said amendment was challenged by the respondents on the plea that the amendment sought by the petitioner was neither vital nor necessary to decide the controversy as it did not go to the root of the case as both Ami Chand and his widow Javitri had predeceased Paltoo Ram. 5. The learned lower Appellate Court came to the conclusion that the amendment was not necessary for adjudication of the matter in dispute and accordingly the application was dismissed. 6. Mr. R. K. Chhibbar, learned Senior Counsel for the petitioner, argued that the amendment sought was necessary for the just and proper adjudication of the case specifically in view of the stand taken by the respondents herein the written statement to the effect that the partition had taken place during the life time of Shri Paltoo Ram and the date of partition alleged by the respondents was the date when the widow of Ami Chand was alive. Therefore, the stand of respondents was not correct. The contention of the learned Counsel for the petitioner was that para 6 of the written statement showed that the stand taken by the respondents was totally wrong as in case the same was to be accepted, then widow of Ami Chand was also entitled to a share in the property because she was alive at that time. In support of his contention, learned Counsel for the petitioner, placed reliance on the judgment of this Court in Dalip Kaur and Anr. V/s. Major Singh and Ors. In support of his contention, learned Counsel for the petitioner, placed reliance on the judgment of this Court in Dalip Kaur and Anr. V/s. Major Singh and Ors. A. I. R.1986 Pandh 107, wherein this Court was pleased to lay down that the following principles should be kept in mind while dealing with the applications for amendment of the pleadings: (i) All amendments should be allowed which are necessary for determination of the real controversies in the suit; (ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis was raised; (iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment; (iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; (v) amendment of a claim or relief barred by time should not be allowed; (vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; (vii) no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties; (viii) the delay in filing the petitions for amendment of the pleadings should be properly compensated by costs. (ix) error or mistake which if not fraudulent should not be made on ground for rejecting the application for amendments of pleadings. 7. The contention of the learned Counsel for the petitioner was that the proposed amendment was necessary for determination of real question of controversy in the suit and did not cause any prejudice to the other side as the same could be compensated by costs. However, I find no force in this contention. The learned lower Appellate Court rightly came to the conclusion that the amendment was not necessary for adjudication of the case inasmuch as even by way of amendment the petitioner was not claiming that any share had fallen to the widow of Ami Chand as the case of both the parties was that the partition had taken place between the three brothers. The stand of the plaintiff-petitioner was that the partition had taken place in 1976 in the presence of Shri Babu Ram Bhardwaj, whereas in the written statement, the stand taken by the respondents was that the same had taken place in 1959. It is well settled law that the plaintiff has to stand on his own legs and cannot depend on the weakness of the defendants. If the matter is seen in this background, then it would be seen that merely by seeking an amendment, no purpose would have been served as by way of amendment, the plaintiff-petitioner was seeking to amend his plaint in order to incorporate the defence taken by the respondents which did not materially affect the case as set up by the plaintiff-petitioner. In view of this, no error can be found in the order passed by the learned lower Appellate Court holding that the amendment was neither necessary nor vital for determination of the matter in controversy and the same was rightly rejected. 8. Therefore, I find no merit in the present revision petition and dismiss the same with no order as to costs.