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2008 DIGILAW 461 (JK)

Mushtaq Ahmad Dhar v. State

2008-12-01

MUZAFFAR HUSSAIN ATTAR

body2008
1. "M.R. Cohen" in his book titled "Reason and Laws" has said and I quote "Law is not a homeless wondering ghost, it is a phase of life located in time and space". 2. People enter into precincts of Courts with the benign hope of getting the disputes settled. In order to settle and resolve the disputes the legislatures have devised procedure for the courts to arrive at just and lawful conclusions in most fair and reasonable manner. The solemn purpose of enacting procedural laws are to administer justice to the parties in an effective and just manner. In practice however unfortunately in most of the cases the procedural laws are being utilized not for resolving the disputes but for prolonging the mental agonies of the litigating party. 3. The procedural laws are meant for advancing the cause of justice and not to defeat the same. A sacred duty is cast on the Courts to ensure that no litigating party is permitted to use the procedural or substantive laws to defeat the legal rights of other parties. 4. Like all other democratic Institutions the Institution of Judiciary also survives on the faith of the people. This faith in the Institution of Judiciary survives on the bed-rock of settled principles that justice should be administered in accordance with laws and further that the justice should reach to every nook and corner where there is injustice, and the litigations should end within reasonable time. 5. There can be variety of reasons for delayed disposal of cases but effort of the courts has to allow the litigating parties to leave the precincts of the courts within reasonable time. This duty of the court is not only sacrosanct but is central in the system of administration of justice. 6. The revision filed by petitioners-defendants seek annulment of order dated 22.03.08, for the reasons stated in the revision petition and on the grounds which were argued by the learned counsel for the petitioners Mr. A. Haqani. Before summarizing the grounds of challenge it would be appropriate to give brief history of the case. 7. A Civil Original Suit came to be instituted in the year 1997 by respondent No.1 against the petitioner and some other persons. The suit was for declaration and injunction. The claim of the plaintiff-respondent No.1 in the suit was that he by profession is a Doctor who is settled in England. 7. A Civil Original Suit came to be instituted in the year 1997 by respondent No.1 against the petitioner and some other persons. The suit was for declaration and injunction. The claim of the plaintiff-respondent No.1 in the suit was that he by profession is a Doctor who is settled in England. He would send money from England to his father and other two brothers for creation of properties and establishment of business. The brothers against whom the suit was instituted, instead of resolving the dispute within the family, however, locked horns with the plaintiff-respondent No.1, and thus have been launched into an orbit of avoidable litigation. Numerous applications seeking amendment of the plaint, were filed by plaintiff-respondent No.1 which were allowed by the trial court by its order dated 7th July 2003. The trial court in its lucid detailed order has referred to the facts and legal position occupying the field and has rightly observed that in order to resolve all the controversy among parties it would be appropriate in the interest of justice to allow the amendment to be made in the plaint. The said order came to be challenged before this Court in Civil Revision No. 81/03 by defendants petitioners. In the said revision petition, the present petitioners had stated that the amendments which were ordered to be allowed by the trial court could not be allowed for the reasons that same were hit by order (2) Rule (2) C.P.C and were also barred by limitation. This court, vide its judgment dated 3.4.04 negatived all the contentions raised by the present petitioners and it was held that the order impugned does not suffer from any jurisdictional error nor is legally infirm and after making some observations revision petition was dismissed. 8. After this the plaintiff filed yet another application before trial court seeking amendment of the plaint. The trial Court vide its order dated 3.6.05 allowed the application of the plaintiff-respondent No.1 to the extent of challenging the sale deed dated 15.09.04 and the other amendments sought were not permitted by the trial Court. The plaintiff-respondent No.1 being aggrieved of the said order, challenged the same before this court in Civil Revision No.96/05. The revision petition was disposed of by this court vide its order dated 1st of August 2007. The plaintiff-respondent No.1 being aggrieved of the said order, challenged the same before this court in Civil Revision No.96/05. The revision petition was disposed of by this court vide its order dated 1st of August 2007. The submissions of the learned counsel for the plaintiff in the said revision petition were taken note of by this Court which provide that the plaintiff intended to furnish better and specific particulars of the subject matter of the suit without any additions or alterations therein, and secondly, he wanted to summarize his response to certain documents which were produced by the defendants during course of the proceedings before the trial court. This court in para 3 and 4 of the judgment after considering the matter in its entirety provided that so far as the first part of the amendment sought is concerned, that would be more or less requisite for effective and complete adjudication of the case and in respect of the second submission, this court said that same is necessitated in view of the documents produced by the defendants and this court found necessity of providing an opportunity to plaintiff to respond to them. Accordingly the petition was disposed of with leave to petitioners-plaintiffs to furnish better particulars of subject matter of the amended suit without any addition or alteration or modification therein and subject to all just exceptions including Law of Limitations. He was also permitted to project his response to such documents touching his claim as were not on record previous to their filing by the defendants. It was specifically provided that plaintiff was not entitled to introduce new cause of action in the suit and nothing in excess of above shall be admissible. Further it is provided that the trial court may afford an opportunity to defendants to respond to whatever the plaintiff pleads in view of leave granted by this Court. This Court in view of the long delay even in commencement of the trial in the case requested the trial court to proceed with dispatch in the matter. 9. Plaintiff-respondent No.1 in pursuance to the orders of this court dated 1.8.2007 passed in Civil Revision No.96/05 filed a plaint before the trial Court. This Court in view of the long delay even in commencement of the trial in the case requested the trial court to proceed with dispatch in the matter. 9. Plaintiff-respondent No.1 in pursuance to the orders of this court dated 1.8.2007 passed in Civil Revision No.96/05 filed a plaint before the trial Court. The petitioners-defendants however being aggrieved of some parts of the plaint filed application seeking for striking out the un-necessary pleadings made by the plaintiff interms of the amended plaint of 2007 which in their wisdom resulted in alteration/addition of earlier plaint. This application was considered by trial court and has dealt with the case with surgical precision and has ordered for weeding out of all those parts of the pleadings in the amended plaint of 2007 which in the wisdom of the trial court were not in consonance with the order of this court dated 1.8.07. The petitioners defendants 1 & 2 however being not satisfied with the order of the trial court dated 22.03.08, challenged the same in the revision petition. 10. The learned counsel Mr. A. Haqani appearing for petitioners-defendants 1 and 2 with his usual vehemence argued that the impugned order suffers from legal infirmities and prayed that same be set aside. The learned counsel after arguing the case at length crystallized his submissions by stating that the respondent-plaintiff has made additions in the amended plaint of 2007 by staking claim to the house at Nigeen. He has further stated that the plaintiff has relinquished/abandoned his claim in respect of properties for which he had not made claim in the first plaint. He has also submitted that the Law of Limitation is also attracted in the case. However, when the respondent No.1 referred to the records of the case showing that the claim about the house at Nigeen had been made at the first instance, the Learned counsel for petitioners Mr. A. Haqani, with regrets stated that the plaintiff has already laid claim in respect of the said property in his earlier plaint and so no addition has been made in the amended plaint of 2007. He however, submitted that the plaintiff has projected the claim by stating that the business is joint and from such joint business immovable properties have been raised. 11. Heard learned counsel for petitioners and respondent No.1 in person. He however, submitted that the plaintiff has projected the claim by stating that the business is joint and from such joint business immovable properties have been raised. 11. Heard learned counsel for petitioners and respondent No.1 in person. The grounds of challenge to seek annulment of the impugned order on the basis of Order 2 Rule 2 is not applicable in the present case as the plaintiff has never been permitted to either introduce a new cause of action or to stake claim for any property which according to petitioner was left out in the earlier plaint. The impugned order reveals that no such relief has been sought by the plaintiff in the amended plaint of 2007. It is true that a claim is extinguished if it is not litigated within the period prescribed by the statute. However this issue is required to be dealt with at the trial of the case by the trial Court, and the petitioners can raise all the defences in their written statement which is yet to be filed in response to amended plaint of 2007. 12. The last submission of Mr. Haqani is that an addition has been made in the amended plaint of 2007 by the plaintiff by using an expression "joint business". The trial court has dealt with this submission of the petitioners and has answered the same which does not require any interference. The claim of the plaintiff that the business was established and property is raised on the funds/money provided by him by and large conveys that the business is joint. 13. In the prayer clause of previous amended plaint, the plaintiff has stated that the business concerns have been created by personal earnings of the plaintiff and joint earnings of the business income. The trial court in this back drop has rightly held that the expression "Joint Business" used by the plaintiff in his amended plaint of 2007 is not a new addition to the pleadings. 14. The claim of plaintiff-respondent No.1 are to be responded to by the petitioners-defendants by filing written statements and they are within their rights in order to safeguard their legal interests to take all the pleas which are just and lawful. The parties have yet to lead their evidence in support of their respective claims. 14. The claim of plaintiff-respondent No.1 are to be responded to by the petitioners-defendants by filing written statements and they are within their rights in order to safeguard their legal interests to take all the pleas which are just and lawful. The parties have yet to lead their evidence in support of their respective claims. The trial court has in most lucid and methodical manner considered the objections of the petitioners in respect of the alleged additions and alterations and wherever the same have been found to be occurring, the trial court in terms of the impugned order has sought their deletion and has directed the plaintiff to file amended plaint in the light of observations made in the order dated 22.03.08. The plaintiff is duty bound to file amended plaint in terms of the order dated 22.03.08. 15. The learned counsel for the petitioner Mr Haqani has placed reliance on judgments AIR 1974 SCC 1979; AIR 1974 SCC 1126 and 2005 (9) SCC 304. The judgments by and large pertain to amendment of pleadings. As already observed the grounds available to petitioners in law can be projected in the written statement which is to be filed by them after the plaintiff files fresh amended plaint in terms of order dated 22.03.2008 passed by the trial Court. 16. The application has been filed by the petitioners for striking out pleadings. The Order 6 Rule 16 of CPC is reproduced as under:- "O.VI 16. Striking out pleadings The Court may at any stage of the proceedings order to be struck out or amend any matter in any pleading. (a) Which may be unnecessary, scandalous, frivolous or vexatious, or (b) Which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) Which is otherwise an abuse of the process of the Court." 17. In the present case, the application is not based on O VI rule 16, but is based on the court order passed on 1.8.07 in Civil Revision No. 96/05. The trial court after considering the objections so made by the petitioners, in the reasoned order provided for striking out/deletions of some of the pleadings and rightly so as same were not in consonance with the order of this court dated 1.8.07. The law cited at bar is not relevant to the controversy raised in this case. 18. The trial court after considering the objections so made by the petitioners, in the reasoned order provided for striking out/deletions of some of the pleadings and rightly so as same were not in consonance with the order of this court dated 1.8.07. The law cited at bar is not relevant to the controversy raised in this case. 18. On the conspectus of what has been stated above the impugned order does not suffer from any jurisdictional error or from any legal infirmity. The petition is dismissed. 19. It is however observed that the suit being more than ten years old and is yet at infancy stage requires immediate attention of the trial court. The trial court is requested to ensure speedy disposal of the case. Record be send back immediately. No order as to costs.