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2008 DIGILAW 508 (PNJ)

Prithi Pal Singh v. Amrik Singh

2008-02-25

PERMOD KOHLI

body2008
Judgment Permod Kohli, J. 1. Respondent No. 2-Bakshish Singh, now represented by L.Rs. instituted suit for pre-emption claiming right of prior purchase in respect of the suit land which was sold by Amrik Singh, vendor to Kashmir Singh and Pritpal Singh, vide sale deed dated 23.5.1979 for consideration of Rs. 75,500/-. The basis for claim of pre-emption was that the plaintiff Bakshish Singh is the real brother of Amrik Singh, both being sons of late Kapoor Singh. Claim for such superior right was made, in view of the provisions of Section 15(1)(a) Secondly of the Punjab Pre-emption Act (hereinafter referred to as the Act) as applicable to the State of Haryana, which inter alia provides for right for pre-emption to a blood relation, including a brother. The suit was decreed by the trial Court vide judgment and decree dated 15.9.1982 by the Sub Judge Second Class, Karnal and appeal preferred therefrom before the Additional District Judge, Karnal by defendants-Kashmir Singh and Pritpal Singh, vendees also failed and came to be dismissed vide judgment and decree dated 30.5.1983. Thereafter, the present second appeal came to be filed in this Court. 2-3 During the pendency of this appeal. Clause secondly of Section 15(1)(a) of the Act was declared ultra vires the Constitution by the Honble Supreme Court in the case of Atam Parkash v. State of Haryana and Ors. The respondents, however, moved an application being CM. No. 1360-C of 1986 under Order 6 Rule 17 of CPC, seeking amendment of the plaint so as to add another ground for exercising the right of pre-emption that the respondents was a co-sharer in the suit land with his brother Amrik Singh at the time of sale of the land. This application, however, came to be dismissed by this Court vide order dated 22.5.1986 and in view of the judgment of the Supreme Court in the case of Atam Parkash (supra), the appeal was also dismissed on the ground that right of pre-emption does not survive. Plaintiff assailed the aforesaid judgment before the Honble Supreme Court and the Honble Supreme Court allowed the appeal vide its judgment dated 10.11.1994 and remanded the case to this Court for de novo decision of the second appeal on merits, by allowing the amendment of the plaint. It may be useful to refer to the concluding para of the observation/judgment of the Apex Court. It may be useful to refer to the concluding para of the observation/judgment of the Apex Court. The second appeal filed in the High Court by the respondent was allowed setting aside the decree in favour of the appellant passed by the trial Court and affirmed in first appeal. The claim in the suit for pre-emption was based initially on the ground that the plaintiff (appellant) was the brother of the vendor and emphasis was not laid also on the fact that the plaintiff was a co-sharer as well. In view of the fact that the right of pre-emption based only on the ground of relationship as a brother was held to be unenforceable, an application for amendment of the plaint was made in the second appeal to claim pre-emption on the admitted fact that the plaintiff was also a co-sharer of the vendor. This amendment application was rejected by the High court and the second appeal filed by the respondent was allowed. In our opinion rejection of the amendment application to plead an additional ground to support the plaintiffs claim, which was based on an admitted fact was erroneous. The amendment sought to be made in the plaint ought to have been allowed. For the aforesaid reason, the appeal is allowed. The impugned judgment of the High Court is set aside. The amendment sought in the plaint in the above manner is allowed. The matter shall now go back to the High Court for a fresh decision of the second appeal on merits in accordance with law after hearing both sides. No costs. 4. Consequent upon the remand of the case to this Court, the defendants/appellants claimed right of reply to the amendment introduced pursuant to the orders of the Supreme Court. Accordingly, vide order dated 12.1.2005, the case was sent to the trial Court to furnish report after permitting the defendant to file written statement to the amended plaint and after allowing the parties to lead evidence on the issues which may arise out of the amended pleadings. The trial court permitted the defendants to file written statement and also allowed the parties to lead their respective evidence. A report has been forwarded by the trial Court vide its order dated 7.3.2006. 5. The trial court permitted the defendants to file written statement and also allowed the parties to lead their respective evidence. A report has been forwarded by the trial Court vide its order dated 7.3.2006. 5. Before the trial Court, the defendant raised the plea of limitation and pleaded that the amendment to introduce new ground of pre-emption as a co-sharer is prospective in nature and suit is deemed to have been instituted from the date the amendment was allowed i.e. 10.11.1994 and sale having been effected on 23.5.1979, the suit is barred by limitation. It was further pleaded that vendees were tenant on batai/tehai over the land, so sale in their favour was not pre-emptible. The trial Court framed following two is-sues: 1. Whether the plaintiff is entitled to pre-empt the sale in favour of defendant No. 1 on the ground of having superior right of pre-emption being a co-sharer in the land? OPP 2. Whether the suit of the plaintiff is time barred? OPD The trial Court, however, decided both these issues in favour of the plaintiff. It concluded that the amendment once allowed, dates back to the institution of the suit. land and thus the suit is within limitation. Court also held that plaintiff being the co-shaser with defendant has a right of pre-emption as a co-sharer. 6. I have perused the report. Learned Counsel for the parties have fairly accepted the factual position viz. that the plaintiff-Bakshish Singh and defendant/vendor-Amrik Singh were/are the co-sharers in the suit land. It is, however, argued by Mr. Goel, appearing on behalf of the appellants that the amendment introduced by the respondents will take effect only from the date of the order of the Supreme Court i.e. 10.11.1994 and limitation for filing a suit for pre-emption being one year, the suit for pre-emption on the ground of being a co-sharer under clause fourthly of Section 15(1)(b) of the Act is beyond the period prescribed and is thus, liable to be dismissed. 7. The admitted facts now stand that the plaintiff and vendor are the co-sharers. The fate of the present appeal hinges upon the question whether the amendment allowed by the Apex Court vide its judgment dated 10.11.1994 will operate from the date of the order or is deemed to have been incorporated as a part of the plaint from the date of the institution of the suit. The fate of the present appeal hinges upon the question whether the amendment allowed by the Apex Court vide its judgment dated 10.11.1994 will operate from the date of the order or is deemed to have been incorporated as a part of the plaint from the date of the institution of the suit. If the amendment is considered to be part of the plaint from the date of institution of the suit, the plaintiff is bound to succeed, otherwise the suit shall fail if the amendment is found to become operative from the date of the order of the Apex Court allowing amendment. It is settled principle of law that at that time of consideration of the plea of amendment, the court is not required to go into the question of merits of the amendment sought. A party seeking the amendment may ultimately succeed or fail on the basis of the amendment is not the relevant consideration at the time the plea of amendment is to be considered. Only consideration at the time is whether such an amendment is necessary, relevant and relate to the controversy involved in the lis. Honble Supreme Court by allowing the amendment of the plaint vide its order dated 10.11.1994 observed that the amendment should have been allowed, on the basis of the admitted facts. Whether the suit is barred by limitation or is within limitation, all depends upon the effective date of amendment. Mr. Goel, learned Counsel for the appellants has referred to the judgment passed in the case of Tarlok Singh v. Vijay Kumar Sabharwal 1996 P.L.J. 237. In this case, the parties had entered into an agreement to sell. A suit for perpetual injunction was instituted on 23.12.1987. During the pendency, of the suit, an application under Order 6 Rule 17 CPC came to be filed on 17.7.1989 for converting the suit for injunction into the one for specific performance of agreement dated 18.8.1984. The amendment was allowed on 25.8.1989. A plea was raised that the suit for specific performance is barred by limitation. This plea was considered by the Apex Court wherein following observations have been made: 6. The amendment was allowed on 25.8.1989. A plea was raised that the suit for specific performance is barred by limitation. This plea was considered by the Apex Court wherein following observations have been made: 6. Shri Prem Malhotra, learned Counsel for the respondents contended that since the respondent had refused performance the suit must be deemed to have been filed on December 23, 1987 and, therefore, when the amendment was allowed, it would relate back to the date of filing the suit which was filed within three years from the date of the refusal. Accordingly, the suit is not barred by limitation. Shri U.R. Lalit, learned senior counsel for the appellant, contended that in view of the liberty given by the High Court the appellant is entitled to raise the plea of limitation. The suit filed after expiry of 3 years from 1986 is barred by limitation. The question is as to when the limitation began to run. In view of the admitted position that the contract was to be performed within 15 days after the injunction was vacated, the limitation began to run on April 6, 1986. In view of the position that the suit for perpetual injunction was converted into one for specific performance by order dated August 25, 1989, the suit must be deemed to have been instituted on August 25, 1989 and the suit was clearly barred by limitation. We find force in the stand of the appellant. We think that parties had, by agreement, determined the date for performance of the contract. Thereby limitation began to run from April 6, 1986. Suit merely for injunction laid on December 23, 1987 would not be of any avail nor the limitation began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6 Rule 17 C.P.C. on September 12, 1979. It will operate only on the application being ordered. Since the amendment was ordered on August 25, 1989, the crucial date would be the date on which the amendment was ordered, by which date, admittedly, the suit is barred by limitation. The courts below, therefore, were not right in decreeing the suit: 8. It will operate only on the application being ordered. Since the amendment was ordered on August 25, 1989, the crucial date would be the date on which the amendment was ordered, by which date, admittedly, the suit is barred by limitation. The courts below, therefore, were not right in decreeing the suit: 8. In the case of Sampath Kumar v. Ayyakannu and Anr., initially a suit for prohibitory injunction was filed in the year 1988 claiming possession of the suit property. Later in the year 1989, an application under Order VI Rule 17 CPC was made for conversion of the suit into one for declaration of title of the suit property and consequential relief of delivery of possession alleging that during the pendency of the suit, defendant dispossessed the plaintiff in January, 1989. The amendment was refused. However, in appeal before the Honble Apex Court, the conditional amendment was allowed. The Honble Apex Court observed as under: 11. In the present case, the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be. allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. xxxxxx 13. ...The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed. From the ratio of the aforesaid judgments, following points emerge: (a) Merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment; (b) The dominant purpose of the amendment is to minimize the litigation; (c) The amendment once allowed and incorporated relates back to the date of the initial institution of the suit; (d) The Court, however, in appropriate case may restrict the application of doctrine of relation back and permit the application of the amendment from the date the amendment is allowed. 9. This principle has been enunciated by the Honble Apex Court in the case of Siddalingamma and Anr v. Mamtha Shenoy, wherein the Court observed: 10. ...On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the court excludes the applicability of the doctrine in a given case, the petition for eviction as amended could be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition. 10. Mr. C.B. Goel, learned Counsel has strenuously argued that the amendment in the present case should be treated to have effected only from 10.11.1994 and the suit for pre-emption is deemed to have been instituted on the said date on the ground of the plaintiff being co-sharer. His precise contention is that the suit for preemption filed in the year 1994 under Clause fourthly Section 15(1)(b) is barred by time having been filed beyond one year from the date of the sale in question. The appreciate this contention, the sole question is whether a new relief has been introduced way of amendment. In the case of Tarlok Singh (supra) initially, the suit was for permanent prohibitory injunction. The appreciate this contention, the sole question is whether a new relief has been introduced way of amendment. In the case of Tarlok Singh (supra) initially, the suit was for permanent prohibitory injunction. However, by way of amendment, a new relief of specific performance was introduced which was held to be barred by time as the cause of action for the relief of specific performance had accrued to the plaintiff in the said case from the date of the execution of the agreement to sell dated 21.12.1984. Relief of specific performance was introduced in the. year 1989 which was admittedly beyond three years from the date cause of action accrued. I have already extracted the relevant observations of the Honble Supreme Court in regard to the amendment. Applying the test to the fact of the present case, the plea of Mr. Goel is not sustainable. In the instant case, it was a suit for pre-emption from the initial day. Initially, the ground for seeking relief was that the plaintiff is the brother of the vendor-defendant. This was one of the grounds available under law by virtue of Clause secondly of Section 15(1)(a) of the Act. This provision, has, however, come to be struck down by the Supreme Court in the case of Atam Parkash (supra). The plaintiff by asking for amendment sought to introduce an additional ground on the plea that besides being the brother, he is also a co-sharer in the suit land. As observed by the Honble Supreme Court, and is evident from the judgment impugned as also the report of the trial Court dated 7.3.2006, there is sufficient material/evidence already on record i.e. prior to the introduction of the amendment to establish that the plaintiff is the co-sharer with the defendant-vendor. Through the amendment only, a new ground has been incorporated and not the new relief. Since the suit seeking the relief of pre-emption was instituted with the time, by introduction of a new ground to support the relief, the suit cannot become time barred. In the present case, the doctrine of relation back of the amendment has to apply as no new or fresh relief has been incorporated. Apart from above, there is another reason to decline the prayer of the appellants. In the present case, the doctrine of relation back of the amendment has to apply as no new or fresh relief has been incorporated. Apart from above, there is another reason to decline the prayer of the appellants. It is settled law as is evident from the ratio of the judgment in the case of Siddalingamma (supra), that the court in appropriate case while allowing the amendment, may restrict the application of doctrine of relation back and permit the amendment from the date of the amendment. In the present case, the order of the Apex Court dated 10.11.1994 is clear and unambiguous in its terms. No such restriction has been imposed. To the contrary, the amendment rejected by this Court has been allowed primarily on the ground that the amendment is based upon admitted facts on record. I am of the considered view that the intention of the Apex Court in allowing the amendment was/is to apply the amendment without excluding the doctrine or relation back which normally and generally governs the amendment of pleadings. 11. In view of the above, this appeal fails. The suit of the respondents, for pre-emption is decreed with no order as to costs.