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2006 DIGILAW 3331 (PNJ)

Mahant Kapil Dev v. Parkash Wati

2006-08-21

S.N.AGGARWAL

body2006
Judgment S.N.Aggarwal, J. 1. The petitioner is the defendant in the learned trial Court. His application for seeking amendment in the written statement has been dismissed by the learned trial Court vide impugned order dated 28.7.2006. Hence, the present petition. 2. The facts of the case are that respondents No. 1 and 2 filed a civil suit against respondents No. 3 and 4 and the petitioner in March 1996 for declaration that plaintiff-respondents are the. owners in possession to the extent of half share i.e. 1/4th share each in the properties numbers (i) to (v), left by their father Dr. Madho Ram Sambhi and also that they are entitled to half share in the movable assets left by the father of the parties. They also sought injunction against the defendants from dispossessing the plaintiff-respondents from the properties in dispute and for restraining the defendants from transferring/alienating the same in any manner. 3. The said suit was contested by the petitioner by filing written statement on 30.4.1996. 4. Issues were framed. The file was coming up for the evidence of the plaintiff-respondents. In the year 2004, the plaintiff-respondents filed an application for getting recorded the statements of Smt. Parkash Wati, Sham Sunder Bedi and Dr. Mohinder Par-tap through Local Commissioner. The said application was allowed by the learned trial Court vide order dated 19.10.2004 against which the petitioner filed the revision petition No. 5202 of 2004. The said revision petition came to be decided by this Court on 28.2.2006. But before that date, the plaintiff-respondents had closed their evidence on 21.2.2006. Therefore, while deciding the C.R. No. 5202 of 2004, this Court directed the learned trial Court to decide the suit expeditiously as the same was of the year 1996. The learned trial Court was directed to grant three opportunities to the respondent-defendants and to the petitioner for leading their evidence. It was also directed that the suit be decided on or before 31.8.2006. 5. Thereafter, the petitioner filed civil misc. No. 6671-CII in C.R. No. 5202 of 2004, with the prayer that the petitioner-defendant be granted six opportunities for concluding his evidence. This application was dismissed by this Court vide order dated 5.5.2006. 6. In these circumstances, this application for amendment has been filed by the petitioner in the learned trial Court on 9.6.2006 for amendment in the written statement. No. 6671-CII in C.R. No. 5202 of 2004, with the prayer that the petitioner-defendant be granted six opportunities for concluding his evidence. This application was dismissed by this Court vide order dated 5.5.2006. 6. In these circumstances, this application for amendment has been filed by the petitioner in the learned trial Court on 9.6.2006 for amendment in the written statement. In the application for amendment, the petitioner-defendant sought to amend the written statement and wanted to take the plea that Dr. Madho Ram Sambhi was the Chela of Mahant Inder Dass and properties No. (ii), (iii), (iv) and (v) were bequeathed to Dr. Madho Ram Sambhi by his Guru Mahant Inder Dass and therefore, these properties were not the individual properties of Dr. Madho Ram Sambhi and could not be inherited by the natural heirs of Dr. Madho Ram Sambhi. However, property No. (i) was purchased by Dr. Madho Ram Sambhi, from his income. Therefore, these properties No. (ii), (iii), (iv) and (v) could be inherited by Chela of Dr. Madho Ram Sambhi and the petitioner was appointed as the Chela by the Bheekh on 7.11.1996. The petitioner was also confirmed as Chela by Panchayati Akhara Bara Udasin Nirvan Haridwar vide writing dated 19.6.1997. It was also held by the Division Bench of Lahore High Court vide judgment and decree dated 30.10.1933 that the properties mentioned at Sr. No. (ii) to (v) were the religious and charitable properties, heritable from Guru to Chela. 7. The submission of the learned Counsel for the petitioner was that the amendment sought to be introduced in the written statement was only of clarificatory nature, which would not change the nature of the case nor it would cause prejudice to the respondents. Reliance was placed on the latest judgment of the Hon ble Supreme Court, reported as Rajesh Kumar Aggarwal and Ors. v. K.K. Modhi and Ors. and it was submitted that the amendment can be sought at any time and it must be allowed if it is subservient to the cause of justice. It was submitted that the controversy involved in the present litigation can be properly adjudicated only if this amendment is allowed. Hence, it was prayed that the impugned order be set aside. 8. and it was submitted that the amendment can be sought at any time and it must be allowed if it is subservient to the cause of justice. It was submitted that the controversy involved in the present litigation can be properly adjudicated only if this amendment is allowed. Hence, it was prayed that the impugned order be set aside. 8. On the other hand, the submission of learned Counsel for the respondents was that this move on the part of the petitioner to seek amendment in the written statement was to put back the clock in the reverse gear. This is just an effort on the part of the petitioner to scuttle the orders passed by this Court in C.R. No. 5202 of 2004, by which the learned trial Court has been directed to finish the trial of this case by 31.8.2006. 9. It was further submitted that if the amendment sought to be introduced by the petitioner is allowed by this Court, it would change the nature of the suit and trial would have to be started de novo. Reference was made to the pleadings of the petitioner made in the written statement filed by him on 30.4.1996 and it was submitted that the amendment is being sought by the petitioner after about 10 years. Reference was made to para 2 of the plaint in which it was specifically pleaded by the plaintiff-respondents that properties No. (i) to (v) were owned and possessed by the father Dr. Madho Ram Sambhi. Reference was also made to para 2 of the written statement field by the petitioner on 30.4.1990 in which it was admitted by him that paragraph 2 of the plaint was correct to the extent that Mahant Dr. Madho Ram Sambhi was owner of the properties mentioned in para 2(i), (ii), (iii) and (iv). However, the petitioner had set up Will dated 19.4.1995 in his favour. It was, therefore, submitted that the petitioner would change entire case if he is allowed to plead that the properties were owned by Dr. Madho Ram Sambhi as a Chela. It was also submitted by learned Counsel for the plaintiff-respondents that originally it was pleaded by the petitioner that he was the Chela of Dr. Madho Ram Sambhi. It was specifically confirmed by Udasi Sectt of Haridwar, but now he petitioner wants to plead that his approval as Chela of Dr. Madho Ram Sambhi as a Chela. It was also submitted by learned Counsel for the plaintiff-respondents that originally it was pleaded by the petitioner that he was the Chela of Dr. Madho Ram Sambhi. It was specifically confirmed by Udasi Sectt of Haridwar, but now he petitioner wants to plead that his approval as Chela of Dr. Madho Ram Sambhi was approved by Bheekh which was held on 7.11.1996. Even the judgment of the Hon ble Division Bench of Lahore High Court dated 30.10.1933 was already in the notice of the petitioner, so also the Bheekh proceedings dated 7.11.1996. But the introduction of these documents in the plaint at this stage after 10 years would cause serious prejudice to the plaintiff-respondents. It was also submitted that the Hon ble Supreme Court in the judgment relied upon by the learned Counsel for the petitioner also lays down rules/principles on which the amendment should be allowed and should not be allowed. Para 16 of the judgment reads as under: As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 10. It was submitted that the case of the petitioner is not covered by this rule and therefore, application for amendment has been rightly dismissed by the learned trial Court. 11. I have considered the submissions advanced before me by the learned Counsel for the parties. 10. It was submitted that the case of the petitioner is not covered by this rule and therefore, application for amendment has been rightly dismissed by the learned trial Court. 11. I have considered the submissions advanced before me by the learned Counsel for the parties. I reach the conclusion that the plaintiff-respondents had claimed inheritance of these properties being the natural heirs of their father Dr. Madho Ram Sambhi, but the petitioner-defendant had admitted the ownership of Dr. Madho Ram Sambhi in the written statement. He had however, set up the Will dated 19.4.1995 in his favour. Therefore, the amendment sought to be introduced at this stage by the petitioner would change the nature of the controversy as by this amendment, he seeks to introduce that these properties were owned by Dr. Madho Ram Sambhi as a Chela and not in his original capacity. If the proposed amendment is contrary to the case set up by the petitioner earlier in the written statement, then the amendment does not deserve to be allowed because it would shift the nature of controversy. 12. However, the learned Counsel for the petitioner submitted that he has pleaded in some paragraphs that the properties had come to Dr. Madho Ram Sambhi from his Guru. If it is so, then the proposed amendment would not serve any purpose. Similarly, the introduction of Bheekh meeting matter on 7.11.1996 would change the stand of the petitioner as earlier he had setup the case that his appointment as Chela was approved by Udasi Sectt at Haridwar on 19.6.1997. 13. So far as the judgment of the Hon ble Lahore High Court is concerned, that can be referred because that judgment is applicable to the facts of the present case. It is only a kind of evidence and need not be pleaded. 14. Moreover, when this proposed amendment is seen in the contest of the order passed by this Court in C.R. No. 5202 of 2004, it appears that the proposed amendment has not been filed with bona fide intention. 15. Keeping in view the discussion held above, there is no legal infirmity in the impugned order passed by the learned trial Court. There is no merit in the present revision petition and the same is dismissed.