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2009 DIGILAW 1239 (DEL)

ABDUL LATIF v. NASIR AHMED

2009-11-06

RAJIV SAHAI ENDLAW

body2009
ORDER 1. This petition under Article 227 of the Constitution of India is preferred by the plaintiff in the suit before the trial Court. The grievance is with respect to the order allowing the application of the respondent No. II defendant No.1 before the trial Court for amendment of the written statement. The trial had admittedly commenced within the meaning of the judgment of the Supreme Court in Vidya Bai v. Padma Lata, JT (2009) 1 SC 303. The Supreme Court in the said judgment has held that after the insertion of the proviso in Order 6 Rule 17 of the crc, the Court has no jurisdiction to allow the amendment which is barred by the said proviso. 2. The plaintiff had sued for possession of immovable property and for mesne profits, etc. The defendant No.1 contested the suit by filing a written statement. It was inter alia the case of the defendant No.1 that the plaintiff had got the property with respect to which the suit was filed transferred in his name only by taking advantage of the illiteracy of his brothers; the defendant No.1 is the son of the brother of the plaintiff. It was further pleaded that the sale deed of the property andlor the property was to be transferred in the name of the father of the defendant No.1 and his two brothers as the consideration for the property had II beell paid from the resources of the joint family business; but the plaintiff had cunningly and with mala fide intention got the property transferred in his name only in place of the name of the father of the defendant No. 1 and another brother also. By way of amendment, the defendant No.1 sought to take the pleas: (a) That the suit was time-barred and hence not maintainable; that the defendant No. 1 had been in possession of the property since January, 1975 and had been acknowledged and regarded as the owner of the property by the neighbours and Government departments. (b) That the defendant was the owner of the property in view of family settlement arrived on 7th January, 1975 between the plaintiff and his brothers including the defendant No. 1. (c) That the sale deed on the basis whereof the plaintiff claimed to be owner of the property did not pertain to the suit property. (b) That the defendant was the owner of the property in view of family settlement arrived on 7th January, 1975 between the plaintiff and his brothers including the defendant No. 1. (c) That the sale deed on the basis whereof the plaintiff claimed to be owner of the property did not pertain to the suit property. (d) It was sought to be denied that the plaintiff had allowed the defendant No.1 to reside in the property on account of relationship as pleaded by the plaintiff. 3. The application for amendment was opposed by the plaintiff. The trial Court has vide order impugned in this petition allowed the amendment. As far as the proviso to Order 6 Rule 1 of the crc is concerned, the trial Court relied upon the judgment in Baldev Singh v. Manohar Singh, III (2006) CLT 275 (SC)=VI (2006) SL T 54= AIR 2006 SC 2832 , and also appears to have held that since the defendant No.1 had in his application for amendment stated that he was misguided by the advocate, the same constituted a ground for allowing the amendment, notwithstanding the trial having commenced. 4. As far as the reliance by the trial Court on Baldev Singh (supra) is concerned, the subsequent judgment in Vidya Bai (supra) has distinguished Baldev Singh as in Baldev Singh the trial had not commenced. 5. What has to be considered is whether the ground taken of the advocate having not advised the defendant No.1 correctly can constitute a ground for allowing the amendment which otherwise the Court has no jurisdiction to allow as held in Vidya Bai. In this regard, the perusal of the written statement as originally filed and the amended written statement as allowed by the trial Court would show that originally a categorical plea was taken of the property having been intended to be purchased in the joint name of the plaintiff and the father of the defendant No.1 and their another brother. The same is also found in consonance with the reply to the legal notice preceding the suit. I fail to understand as to how it can be said that the advocate engaged by the defendant No.1 who was himself not in the know of the facts of the case and could have taken such specific plea without instructions therefor flowing from the defendant No. 1. I fail to understand as to how it can be said that the advocate engaged by the defendant No.1 who was himself not in the know of the facts of the case and could have taken such specific plea without instructions therefor flowing from the defendant No. 1. Thus I do not consider it plausible that the advocate had taken the said plea on his own. 6. The Counsel for the respondent No. 1 defendant has relied upon paragraph 2 of the reply to the notice preceding the suit in which a claim has been made that the defendant No.1 is the owner of the property. I do not find the said claim of the defendant No. 1 in the reply to the legal notice to be inconsistent with the stand in the written statement as originally filed. The defendant No.1 was claiming ownership on account of the property having been purchased from funds of joint partnership business. I may notice that the parties herein are muslims and in whose personal law there is no concept of a joint family. 7. In the circumstances aforesaid, the plea now sought to be taken of the defendant No.1 being the owner by way of a family settlement is not such which could have been misconstrued by the Advocate. If the claim is of the defendant No. l/his father being the owner since acquisition of the property and acquisition being with joint funds, there was no need for a family settlement whereunder the title in the property could be vested. 8. Similarly, as far as the plea of adverse possession is concerned, the Counsel for the respondent No.1 has argued that since the defendant No.1 was admittedly in possession of the property since more than 12 years prior to the institution of the suit, the suit had become time barred and the defendant No.1 had become owner by adverse possession. This is a repetition of what is generally believed by a large number of litigants and which has no basis in law. The Counsel is unable to cite any law or provision of law on basis whereof such submission is made. Under Article 65 of the Schedule to the Limitation Act, a claim for possession becomes time barred after 12 years from the date when the defendant claims adversely to the plaintiff. The Counsel is unable to cite any law or provision of law on basis whereof such submission is made. Under Article 65 of the Schedule to the Limitation Act, a claim for possession becomes time barred after 12 years from the date when the defendant claims adversely to the plaintiff. Moreover the Supreme Court has in I.N. Aswathama v. P. Prakash, VI (2009) SLT 653=III (2009) CLT 280 (SC) held that the plea of adverse possession and lawful title are contradictory to each other and cannot be sustained, and in any case such inconsistent plea cannot be permitted to be taken by way of amendment. The Counsel for the respondent No.1 has contended that inconsistent pleas can be taken. He has also in this regard relied upon Arihant Tea Company v. Jayshree Tea and Industries Ltd., 161(2009) DLT 509 and National Small Industries Corporation Ltd. v. Gaajra International, 2009 (108) DRJ 225 on the aspect of amendment after commencement of trial. However, in view of the judgment of the Supreme Court in Vidya Bai holding the jurisdiction to allow amendment after trial commences, to be barred, need is not felt to discuss the said judgments. 9. As far as the other amendment of disputing the identity of the property is concerned, the defendant No. 1 in the written statement as originally filed categorically admitted that the sale deed was cunningly got executed in the name of the plaintiff only. The plaintiff / defendant No.1 cannot now be permitted to withdraw the admission that the said sale deed pertains to the property with respect whereto the suit had been filed. 10. I, therefore, find that the trial Court in allowing the amendment has exercised the jurisdiction not vested in the Court. I also find that the opinion of the trial Court of the defendant No.1 having made out a case of having not been able to take the said pleas in spite of due diligence is not based on any material whatsoever. The Supreme Court in State of Maharashtra v. Milind, VIII (2000) SL T 225= 2000 (7) SCALE 628 , has held that when the finding of the trial Court is found to be not based on any material, interference under Article 227 is permissible. 11. This petition is allowed. Impugned order is set aside. 12. The application for amendment is dismissed. 11. This petition is allowed. Impugned order is set aside. 12. The application for amendment is dismissed. The stay earlier granted of proceedings before the trial Court is vacated. Petition allowed.