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2008 DIGILAW 1594 (RAJ)

Ram Niwas v. Bhala Ram

2008-07-02

DINESH MAHESHWARI

body2008
JUDGMENT 1. - This writ petition is directed against the order dated 14.09.2007 (Annex.7) as passed by the Civil Judge (Junior Division), Bar, District Pali in Civil Original Suit No. 35/2005 refusing the prayer for amendment of the plaint as made by the plaintiff-petitioner. 2. The plaintiff-petitioner has filed the suit aforesaid on 18.08.2004 for mandatory and perpetual injunction against the defendant-respondent No.1 with the submissions that in the abadi area of village Balunda is situated a plot of land of his ownership and possession, as described in paragraphs 1 and 2 of the plaint and as shown in the plan annexed to the plaint. The petitioner has alleged that the patta of the said plot of land was issued by Gram Panchayat, Balunda on 30.12.1973 in the name of his brother Ramanuj who, in turn, executed a release deed in his favour and handed over possession; and since then, he has been in possession of the land as the owner. The plaintiff has alleged cause of action for the present suit having arisen on 22.07.2004 and 26.07.2004 when the defendant removed his stone-slabs from the land in question, on 13.08.2004 when the defendant and his family members took away the Babool tree from the land in question, and on 14.08.2004 when the defendant forcibly made a kuchcha construction on the land in question and threatened to dispossess him. The plaintiff has prayed for the relief of injunction to restrain the defendant from interfering with his use of the land in question; for removal of the kuchcha structure placed by the defendant and for removal of any other construction, if raised by the defendant during the pendency of the suit; and for restoration of possession if the plaintiff be dispossessed during the pendency of the suit. It may be pointed out that the plaintiff has also averred in paragraph 4 of the plaint (Annex.1) that there was a dispute between himself and Gram Panchayat in Civil Suit No. 57/1999 that was decided by the Trial Court on 20.12.2001 and the appeal taken by him to the Court of Additional District Judge, Sojat Camp Jaitaran was decided on 19.08.2002; and, according to the plaintiff, in the related Miscellaneous Case No.74/1999, the present defendant did file an affidavit in his favour. 3. 3. The defendant has put the suit to contest with the submissions, inter alia, that he had purchased the land in dispute in the year 1974 from the plaintiff himself after making payment of Rs. 17,000/- and was handed over possession by the plaintiff and he continues in possession without interruption. It has also been submitted that the plaintiff being out of possession, the suit for injunction is not maintainable. 4. It appears that after framing of the issues in this suit on 25.05.2007, the examination-in-chief of the plaintiff as PW-1 commenced on 21.07.2007 (Annex. 4) wherein the plaintiff petitioner stated that the patta of the land in question was issued in the name of his brother Ramanuj. However, an objection was raised by the defendant when the said patta was sought to be exhibited in evidence, and the statements of the plaintiff-petitioner were deferred. 5. Thereafter, on 04.08.2007, the plaintiff-petitioner came out with the application (Annex.5) seeking to amend the plaint with the submissions that the patta in relation to the land in question has been issued in his favour by Gram Panchayat, Balunda in File No. 5/2004-05. The petitioner submitted that at the time of presentation of the plaint, such patta had not been issued and the same was issued later but being related to the land in question, such facts be permitted to be pleaded with insertion of paragraph 4-A in the plaint. The petitioner asserted that under Order 6, Rule 17 and Section 151 of the Code of Civil Procedure (CPC), amendment could be allowed for the purpose of determination of real dispute between the parties; that by allowing the amendment prayed for, neither the nature of the suit would change nor the defendant would be prejudiced; and that it remains a subsequent event. The averments as taken paragraph 2 of the application (Annex. 5) read as under:- " ;g gS fd okn i= izLrqr djrs le; ;g iV~Vk xzke iapk;r cyqUnk }kjk tkjh fd;k gqvk ugha Fkk ckn esa tkjh fd;k x;k gS bl okn esa tks fookfnr Hkwfe gS mldk fodz; foys[k gSA tks xzke iapk;r }kjk fu;ekuqlkj tkjh fd;k x;k gSA okn i= esa oknh dks bl iV~Vk ckcr la'kks/ku djus dh btktr fn;k tkuk vko';d gS ftlls fookn dh fo"k; oLrq ckcr ,d gh okn esa fuokj.k fd;k tk lds o eqdnesa dh fofo/krk Hkh ugha c<+sA " 6. The defendant-respondent No.1 put the application to contest and the learned Trial Court has proceeded to reject the application by its impugned order dated 14.09.2007 (Annex.7) while agreeing with the submission of the defendant that, admittedly, the patta as referred in the application for amendment was issued on 05.06.2004 whereas the present suit was filed on 18.08.2004; meaning thereby that the patta in question had already been issued about two months before filing of the suit. The learned Trial Court has referred to the proviso to Rule 17ORDER6 CPC and has observed that the trial has commenced in the present case and the statements of PW-1 have been recorded in part and the prayer for amendment has been made about three years after filing of the suit and only after commencement of the trial whereas the alleged patta had been in possession of the plaintiff even before filing of the suit; and has further observed that the plaintiff has failed to show as to why the document could not have been produced or amendment could not have been prayed earlier. 7. Assailing the order aforesaid, learned counsel for the plaintiff-petitioner strenuously contended that the learned Trial Court has proceeded on a wrong assumption that the patta in question had been issued prior to the filing of the suit though the fact remains that the patta fees was deposited only under receipt No. 92 dated 13.12.2004 and the patta could not have been issued prior to that date. Learned counsel submitted that though the patta in question bears the date 05.06.2004, but the document having been issued later and being directly related to the matter in controversy, the pleadings in that relation ought to have been allowed. Learned counsel for the petitioner further submitted that the amendment has been prayed bona fide and it remains settled that the amendment of pleadings should be allowed liberally and the learned Trial Court has acted illegally in disallowing the application for amendment in a cursory manner and on irrelevant considerations. Learned counsel for the petitioner further submitted that the amendment has been prayed bona fide and it remains settled that the amendment of pleadings should be allowed liberally and the learned Trial Court has acted illegally in disallowing the application for amendment in a cursory manner and on irrelevant considerations. Learned counsel yet further submitted that the fundamental of the case of the petitioner remains the same when he has prayed for injunction claiming himself to be the owner of the property in question; that although he has filed the suit with the pleadings regarding release deed by his brother but after filing of the suit, when a patta has directly been issued in his favour by the concerned Panchayat, the same fortifies his claim of title to the property and the pleadings in that relation cannot be denied. Learned counsel has referred to and relied upon the decisions in Andhra Bank v. ABN Amro Bank N.V. & Ors., 2007 (2) Apex Court Judgments 614 , Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors., 2007 (2) Apex Court Judgments 273 , Baldev Singh & Ors. v. Manohar Singh & Anr., 2007 (2) RLW 721 , and Usha Devi v. Rijwan Ahamd & Ors., 2008 (2) SRJ 38 . 8. Learned counsel for the defendant-respondent No. 1, on the other hand, strenuously opposed with the submissions that the contention as put forward in this writ petition about later deposit of the amount on 13.12.2004 and issuance of patta thereafter was not stated in the application for amendment nor urged before the Trial Court and the petitioner is not entitled to take a new plea in this writ petition. Learned counsel submitted that in the entire plaint there is no pleading about existence of direct title in favour of the petitioner and the suit has been filed on the basis of a so-called release deed from the brother of the petitioner and now amendment of the pleadings to the effect that a patta has been issued by the Panchayat in favour of the plaintiff would change the cause of action in the suit at its roots. Learned counsel further referred to the patta in question, a copy whereof has been placed on record as Annex. Learned counsel further referred to the patta in question, a copy whereof has been placed on record as Annex. R/1, and submitted that the said patta has purportedly been issued under Rule 156 (1) (a) of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996') by private negotiation and, apart from invalidity of the patta on various scores, for the purpose of the present matter, noticeable it is that such aspect of private negotiation cannot be unilateral on the part of the Panchayat and obviously the petitioner was aware of issuance of the said patta on 05.06.2004, if at all validly issued. Learned counsel for the contesting respondent further submitted that the plaintiff-petitioner has failed to make out a case of due diligence and the highly belated application for amendment, filed three years after the suit and after commencement of the trial, has rightly been rejected. Learned counsel has referred to the decisions in Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 , and Deendayal v. Mangi Lal, 2002 (3) DNJ (Raj.) 1304 . Learned counsel for the plaintiff-petitioner rejoined with the submissions that the nature of the suit would not change by the amendment in question as the suit would remain the one for injunction and no such delay has occurred whereby any right has accrued in favour of the defendant and no prejudice would be caused by allowing the amendment. Learned counsel for the petitioner further submitted that not all the details about the dates of issuance of patta and deposit of patta fees were required to be stated in the application for amendment wherein the basic facts were required to be, and have been, stated that the patta was issued only after filing of the suit; and in the overall circumstances of the present case, where the fact about deposit of the amount of patta fees only on 13.12.2004 has been stated on the document itself, the prayer for amendment relating to the said patta ought to have been allowed. 9. Having given a thoughtful consideration to the rival submissions and having scanned through the material placed on record, this Court is unable to find any jurisdictional error in the impugned order dated 14.09.2007 (Annex.7) as passed by the learned Trial Court. 10. 9. Having given a thoughtful consideration to the rival submissions and having scanned through the material placed on record, this Court is unable to find any jurisdictional error in the impugned order dated 14.09.2007 (Annex.7) as passed by the learned Trial Court. 10. It may be pointed out in the first place that the decisions in the cases of Andhra Bank, Usha Balashaheb Swami, and Baldev Singh, as cited by the counsel for the petitioner, relate to the amendment of written statement, and by its very nature, the prayer of amendment of written statement is considered on different footings and rather more liberally than the prayer for amendment of the plaint, as pointed out by the Hon'ble Supreme Court in Usha Balashaheb Swami' case (supra) that: "20. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. "21. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.." 11. The present one being the case of prayer for amendment of the plaint, the aforesaid decisions relating to the prayer of amendment of written statement rule out their direct applicability to the questions involved herein. The decision in Usha Devi v. Rijwan Ahmed (supra), though being of the amendment of the plaint but therein, the amendment prayed for related only to correction in the description of the suit property as stated in the Schedule to the plaint; and such amendment was found necessary by the Hon'ble Supreme Court in the interest of justice. The decision in Usha Devi v. Rijwan Ahmed (supra), though being of the amendment of the plaint but therein, the amendment prayed for related only to correction in the description of the suit property as stated in the Schedule to the plaint; and such amendment was found necessary by the Hon'ble Supreme Court in the interest of justice. In essence, the cited decisions are of little support to the submissions urged in this case on behalf of the plaintiff-petitioner. 12. The board principles, however, as indicated in and emanating from the cited decisions, are of no doubt or debate that the prayer for amendment of pleadings is considered liberally; that merit of amendment is not gone into while considering the application for amendment of pleadings; that mere delay in applying is not a ground to refuse the prayer for amendment; that the amendment is permissible to explain the existing pleadings; and all such amendments that are necessary for determination of real questions are allowed but then, equally fundamental remains the principle that the prayer for amendment is allowed when made bona fide and when not causing serious injustice to the other side as observed by the Hon'ble Supreme Court in Usha Balashaheb Swami's case (supra): "19. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one.." 13. The prayer for amendment in the present case does not appear to have been made bona fide, particularly for concealment of relevant facts in the application for amendment (Annex.5). The principal paragraph of the application for amendment has been reproduced hereinbefore and therein and so also in the entire application, the relevant date of the patta in question and the relevant date of its issuance are conspicuously missing. The submissions of the learned counsel of the petitioner that such dates were not of material particulars is not correct because the assertion of the petitioner in the application for amendment had been that the patta was issued after filing of the suit. The submissions of the learned counsel of the petitioner that such dates were not of material particulars is not correct because the assertion of the petitioner in the application for amendment had been that the patta was issued after filing of the suit. In the wake of such assertion, all the dates pertaining to and related with the said patta were of material particulars and of prime importance. A bare look at the record of the case makes it apparent that the plaintiff-petitioner has deliberately avoided such material particulars about the relevant dates in his application for amendment, though otherwise stated even the case file number (5/2004-05) relating to the said patta. The facts, contrary to the suggestion of the petitioner, remain that the patta in question bears the date 05.06.2004 whereas the suit was filed on 18.08.2004. 14. The submissions of the learned counsel for the respondent that the suggestion as made in this writ petition with reference to the date of deposit receipt i.e., 13.12.2004 were not even stated in the application for amendment and were not urged before the Trial Court cannot be dubbed as mere technical objections. While giving challenge to an order passed by the subordinate Court during the course of a civil litigation, the petitioner before this Court cannot be allowed to make out a new case with such submissions that were not even urged before the subordinate Court for consideration. Apart that the petitioner is not entitled to urge new ground in this writ petition, significant it is to notice that even the new ground has been placed only on the periphery of the core of the question as to when did the petitioner come to know about the patta in question. Even with reference to the alleged deposit dated 13.12.2004, the petitioner is not categoric that he came to know about the patta only on or about the date of such deposit and the vague and uncertain averments as taken in ground (i) of this writ petition only give out the suggestions as to what would be the procedure for issuance of patta and that the patta could not have been issued before deposit of patta fees and that the patta could not have been received prior to the date of such deposit. Such averments do not make out a specific case that the petitioner acquired the knowledge about the patta in question only after filing of the suit. In the fact situation of the present case, particularly for the petitioner being not forthright in his submissions and the application seeking amendment being wholly cryptic and cursory, the learned Trial Court cannot be faulted in having rejected the same; and the vague submissions as made in this writ petition do not make out any case for interference. 15. Noteworthy it is that if at all the concerned Gram Panchayat took up the proceedings to transfer the land in question to the petitioner by private negotiation under Rule 156 (1) (a) of the Rules of 1996 and adopted a resolution to that effect on 05.06.2004, such a decision could not have been taken without the knowledge of the petitioner. Under Rule 156 (1) (a) of the Rules of 1996, the Panchayat may transfer any abadi land by way of sale by private negotiation where any person has a plausible claim of title to the land and auction may not fetch reasonable price. For such a grant, if at all made under Rule 156(1)(a) of the Rules of 1996, the petitioner ought to have shown a 'plausible claim of title' to the Panchayat and then ought to have entered into negotiation with the Panchayat. Significantly, the petitioner has taken the pleadings in paragraph 4 of the plaint about some dispute with Gram Panchayat that was allegedly decided in appeal on 19.08.2002 but has nowhere even indicated in the suit filed on 18.08.2004 that any such transfer of the said land by the Panchayat by private negotiation was in the offing or under contemplation or under negotiation. According to the alleged patta, the Panchayat had adopted resolution to transfer the land to the petitioner on 05.06.2004. Such resolution, if validly adopted, could not but be based on some claim of the petitioner; and it is difficult to even surmise that the petitioner was not aware about such resolution at the time of filing of the suit on 18.08.2004. There is no explanation on record as to why the petitioner has chosen to avoid stating anything regarding his dealings with the Panchayat in the plaint presented on 18.08.2004? 16. There is no explanation on record as to why the petitioner has chosen to avoid stating anything regarding his dealings with the Panchayat in the plaint presented on 18.08.2004? 16. Besides the above, and even when the said uncertain suggestion about deposit on 13.12.2004, by some stretch of imagination, is given the meaning that the petitioner came to know about the patta dated 05.06.2004 only on 13.12.2004, i.e., after filing of the suit, it is yet not brought about as to why the petitioner could not have placed such document and related pleadings in the present suit immediately after 13.12.2004? The petitioner had ample time, opportunities, and occasions to take such pleadings after 13.12.2004, at least before framing of issues, that were framed only on 25.05.2007. 17. The suit in question was filed on 18.08.2004 and the precise case in the plaint has been that Gram Panchayat had issued a patta on 13.12.1973 in favour of the brother of the petitioner who executed a release deed in favour of the petitioner. If at all another patta had been issued related to the land in question, say on or about 13.12.2004, the petitioner has totally failed to show as to why the pleadings in that relation were not stated before framing of issues? 18. Moreover, after framing of issues on 25.05.2007, the statements of the petitioner commenced as PW-1 on 21.07.2007. It cannot be said in this case that the trial has not commenced at all. The application for amendment was made in this case only on 04.08.2007 after the evidence of the plaintiff commenced and in that view of the matter, the requirements of proviso to Rule 17ORDER6 CPC could not have been ignored altogether. In any case, even apart from the said proviso to Rule 17, averments in the application for amendment being cryptic to the hilt and the petitioner having consciously chosen not to state the date of issuance of patta, i.e., 05.06.2004, in his application for amendment that was moved only on 04.08.2007; and having not stated a word on the cause of inordinate delay in applying for amendment whereby the very basis of his claim was sought to be altered, the Trial Court cannot be faulted in rejecting the prayer for amendment of the plaint as made in this case. 19. 19. There is no doubt about the principles that delay alone is not a ground for refusing amendment and prayer for amendment is generally considered liberally; and if found necessary for determination of real questions in controversy in the interest of justice, the amendment could be allowed but then, in the present case, having examined the record in its totality, this Court is satisfied that the petitioner has not been forthright in stating his case before the Court and in the overall fact situation, the prayer for amendment does not appear bona fide and allowing the same would be causing serious prejudice to the defendant. There does not appear any jurisdictional error in the learned Trial Court refusing the prayer for amendment as made by the plaintiff-petitioner; and there appears no reason to interfere in writ jurisdiction. 20. On the facts and in the circumstances of the present case, this Court is further of the view that the vague application for amendment as made by the petitioner ought to have been rejected with costs; and the error, if any, on the part of the learned Trial Court has been of not saddling the petitioner with costs. This writ petition remains totally bereft of substance and deserves to be dismissed, of course, with costs. 21. The petition is, accordingly, dismissed with costs quantified at Rs.2,200/-.Petition dismissed. *******