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2009 DIGILAW 451 (JK)

Bhagwan Singh v. Nanak Singh

2009-09-15

J.P.SINGH

body2009
1. Aggrieved by the rejection of his application, seeking amendment of the plaint, to include the relief of possession therein, besides introducing consequential amendments in some of the paragraphs of the plaint, by the trial Court of Sub Judge, Chief Judicial Magistrate, Jammu, the petitioner has filed this Civil Revision Petition questioning the order on the ground that the trial Court has erred in refusing amendment, on the plea that if allowed, it would take the suit out of the jurisdiction of the Court. 2. Placing reliance on Raj Kumar v. Benoy Kumar reported as AIR 1985 Cal 328, Shiban Kishen v. Mohd. Lalief Khan and anr. reported as 1983 KLJ 147, Sudershan Sirigh v. Mohan Lal reported as 1981 KLJ 252, Raj Paul v. Om Parkash reported as 1984 KLJ123 and M/s Modhi Spinning & Weaving Mills Co. Ltd. And another v. M/S Ladha Ram & Co. reported as AIR 1977 SC 680, respondent no. 1s learned counsel supports the order impugned in the petition. 3. I have considered the submissions made and the judgments cited at the Bar, by learned counsel for the parties. 4. The petitioner filed a suit seeking declaration of being the owner of 42 kanals and 17 marlas of land, comprised in various khasra numbers, detailed in the plaint, situated at village Abtal, Tehsil Samba, in the State of Jammu and Kashmir, being the sole surviving member of the unit of the family, of which Sadhu Singh was the head of family, in terms of Cabinet Order no.578-C of 1954 And that the Gift Deed executed by Sadhu Singh, in favour of respondent nos. 2 to 4, through respondent no.l, as Attorney, was null and void, inoperative and ineffective, besides the consequential relief of directing the Military Estate Officer, respondent no.5, to recover the compensation paid to the defendant nos. 2 to 4 and declaring the petitioner entitled thereto. 5. The reliefs sought for in the plaint, were claimed on the ground that the respondent no.1 had managed execution of the Power of Attorney from Sadhu Singh and executed a Gift Deed of the landed property in favour of respondent nos. 2 to 4, his sons, which was against the terms and conditions of the Power of Attorney besides being otherwise against law. 6. The respondents opposed the petitioners suit, inter alia, questioning its maintainability, for omission to seek possession. 7. 2 to 4, his sons, which was against the terms and conditions of the Power of Attorney besides being otherwise against law. 6. The respondents opposed the petitioners suit, inter alia, questioning its maintainability, for omission to seek possession. 7. Before the parties would lead evidence, on the issues framed in the case on December 20, 2003, the petitioner filed an application, seeking amendment of the plaint, as indicated at the threshold. The respondents opposed the petitioners application on the ground that, filed belatedly, the amendment sought for may not be permissible, for it would introduce a new cause of action changing thereby the complexion of the suit, which would cause serious prejudice to the defendants. 8. The trial Court has rejected the petitioners application on the ground that the amendment, if allowed, would take the suit out of the jurisdiction of the Court as the relief sought for, was a dispute cognizable by the Revenue Courts and not by a Civil Court. Amendments sought to be introduced in various paragraphs of the plaint have been disallowed, on the ground that pleading of evidence and law to support the facts already pleaded was uncalled for. 9. The trial Court, it appears has rejected the petitioners application proceeding on the premise that the petitioners suit was barred under Section 25 of the Jammu & Kashmir Agrarian Reforms Act, 1976 and Section 139 of the Jammu and Kashmir Land Revenue Act, when the defendants do not appear to have pressed the plea of jurisdiction raised in their written statement, at the time when the trial Court had framed eight issues arising out of the pleadings of the parties and recorded that no other issue had been pressed by learned counsel for the parties. 10. Rejection of the petitioners application on the ground that the suit would be barred in the Civil Court was thus, clearly unwarranted additionally because the merit of the amendment is hardly a relevant consideration to consider the grant or otherwise of the amendment sought for by the parties to the litigation. 11. I am supported in taking this view by Usha Devi v. Rizwan Ahmed and ors., reported as AIR 2008 SC 1147, where their Lordhships of Honble Supreme Court of India, observed as follows:- "11. 11. I am supported in taking this view by Usha Devi v. Rizwan Ahmed and ors., reported as AIR 2008 SC 1147, where their Lordhships of Honble Supreme Court of India, observed as follows:- "11. As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the defendants-respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement." 12. Respondent no.1s counsels submission that the amendment, if allowed, would oust the jurisdiction of the Court to grant the relief of possession, though not urged in opposition to the petitioners prayer seeking amendment of the plaint, is even otherwise misconceived, as the amendment cannot be disallowed merely because the proposed amendment was likely to oust the jurisdiction of the Court, for such a question would fall for consideration of the Court only when an issue to the effect was raised in the Court. I am supported in taking this view by Suri Films v. S.N.Govinda Prabhu & Brother, reported as AIR 1989 Kerla 28. Petitioners suit seeking declaration of his being absolute owner of the property in question on the basis of his being the sole survivor and that the Gift Deed was null and void, being executed by a person who had no authority to execute the Gift Deed and was otherwise invalid, are prima facie such questions which would require consideration only a Civil Court. 13. Raj Kumar Singhania v. Benoy Kumar Mazumdar and others (supra), cited by the respondents learned counsel, is distinguishable on facts, in that, the amendment had been refused in the case finding that the property in dispute was out of the jurisdiction of the Court which, therefore, lacked initial jurisdiction to entertain the suit. 13. Raj Kumar Singhania v. Benoy Kumar Mazumdar and others (supra), cited by the respondents learned counsel, is distinguishable on facts, in that, the amendment had been refused in the case finding that the property in dispute was out of the jurisdiction of the Court which, therefore, lacked initial jurisdiction to entertain the suit. Learned counsels submission that the amendment sought for was impermissible in view of the provisions of Order-2 Rule-2 C.P.C too is misconceived, in that, the inadvertent error pleaded by the petitioner to seek amendment at the time when he had filed the suit, with the intention to correct the inadvertent error, can not be construed as intentional relinquishment of his claim to possession, particularly when the amendment had been sought for before the parties would proceed to lead their respective evidence on the issues framed in the case. 14. The trial court has thus, committed error of law, in rejecting the petitioners application, on the plea, which has been found unsustainable. 15. Accordingly, allowing this Revision Petition and setting aside the order impugned, the petitioners application for amendment is allowed subject, however, to payment of Rs.2,000/- as costs to the other side for filing the application belatedly, without giving any explanation therefor.