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2010 DIGILAW 3302 (PNJ)

Rajwant Kaur v. Davinder Singh

2010-12-09

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Defendants-petitioners have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 01.10,2010 passed by learned Civil Judge (Junior Division), Ludhiana, whereby allowing the application moved by the plaintiff-respondent seeking amendment in the plaint. 2. The brief facts, inter-alia, of the case are that plaintiff has filed suit for permanent prohibitory injunction taking specific plea therein that she has never executed any gift deed. Plaintiff has taken specific case in paragraph Nos. 6,7, 8 and 10. Paragraph Nos. 6, 7, 8 and 10 of the plaint are being reproduced herein:- "6. That thereafter the plaintiff being an old age lady remained under treatment under various doctors and the defendants asked the plaintiff that they will get her treatment from a qualified doctor but took her to Sub Registrar Ludhiana on 18.4.2006 and got transferred the property in the name of the defendant No. 2 and 3 through gift deed which was already typed and the plaintiff never singed the gift deed and the defendants procured the sig natures by catching the hands of the plaintiff and also took her before Sub Registrar to complete all the formalities. 7. That after about a month on 17.5.2006 the defendants on thepretext, of taking the plaintiff to his doctor took her to Sab Registrar Jagraon and got transferred 16K-9M in the name of defendant no.2 and 3 without any payment and again there the defendants obtained the signatures of the plaintiff by catching the hand of the plaintiff. 8. That thereafter, the plaintiff gave the application regarding this fraudulent act of defendant to D.C. Ludhiana and again to Sr. Superintendent of Police, Ludhiana and also informed his son Davinder Singh who was residing is Canada about the illegal act of the defendants and he came to India and asked to the defendant but they flatly refused the whole drama. Then the son of the plaintiff Davinder Singh also given the -application to the Tehsildar, West Ludhiana. Deputy Commissioner, Ludhiana and the Senior Superintendent Ludhiana but the defendants did not agree and raised the dispute. 10. That the plaintiff is entitled to injunction on the following grounds:- (i) That a earlier mutation of Agwar Khawaja Baju Jagraon, the plaintiff has been shewn as dead person in the revenue record. Deputy Commissioner, Ludhiana and the Senior Superintendent Ludhiana but the defendants did not agree and raised the dispute. 10. That the plaintiff is entitled to injunction on the following grounds:- (i) That a earlier mutation of Agwar Khawaja Baju Jagraon, the plaintiff has been shewn as dead person in the revenue record. (ii) That the defendants have obtained a cash credit limit from Punjab and Sind Bank showing the only defendants as sole owners of the property in dispute. (iii) That the plaintiff never filled any treasury challan for depositing an amount of Rs. 1,81,410/- as stamp duty for gifting the property to the defendants nor obtained any receipt No. RB/1/505298 dated 17.04.2006 in State Bank of India, as she being an old age lady of 90 years nor she had Rs. 1,81,410/- in her bank account. (iv) That the plaintiff do not know any jatinder Pal Singh who deposited the amount in the name of the plaintiff even both. the witness of the gift deed dated 18.04.2006 are some unknown persons and not from village Barewal which is the residence of the plaintiff. (v) That the plaintiff also have not purchased a stamp paper of Rs. 37020/- for sale deed regarding the property at Jagraon which is valued for. Rs. 32,34,000/-. (vi) That the sale deed is without consideration and is liable to be set aside. (vii) That no amount was paid to the plaintiff" by the defendant nor the defendants have no such huge account on. 17.05.2006 and the sale deed is also a fake and false document and the witnesses of the sale deed are also unknown persons to the plaintiff. (viii) That the plaintiff is very old lady and is under treatment and is in the last stage of her life for few days and she is not able to come to any office without help and is totally dependent upon her sons." 3. Before either of the party could lead evidence, plaintiff moved an amendment application seeking permission from the Court to add relief of declaration declaring the deed in question as void, ab initio, not binding on the plaintiff. Application, so moved. by the plaintiff, was allowed by the impugned order. 4. Before either of the party could lead evidence, plaintiff moved an amendment application seeking permission from the Court to add relief of declaration declaring the deed in question as void, ab initio, not binding on the plaintiff. Application, so moved. by the plaintiff, was allowed by the impugned order. 4. Learned counsel for the petitioners vehemently argued that no amendment should be allowed after the commencement of the trial in view of the proviso to Order 6 Rule 17 C.P.C. Learned counsel has placed reliance on the judgment of the Apex Court in the matter of Ajendraprasadji N. Pande & Am. v. Swami Keshavprakeshdasji N. & Ors. AIR 2007 SC 806 : (2006)12 SCC 1 and in the matter of Alkapuri Co-operative Housing Society Ltd v. Jayapitibhai Naginbhai (deceased) thr. LRs, - AIR 2009 SC 1948 : (2009)3 SCC 467. 5. There is no dispute that ordinarily amendment should not be allowed after the commencement of the trie!, unless and until party seeking amendment proves that inspite of due diligence pleas sought to.be taken could not be taken at the initial stage. However, in the opinion of this Court, if pleadings are already there in the plaint challenging the transactions, then merely adding relief for declaration in the plaint by way of amendment shall not be barred by proviso to Order 6 Rule 17 C.P.C. As reproduced herein above, paragraph Nos. 6, 7,8 and 10 of the plaint, I find all the ingredients to seek declaration challenging the transactions in question have already been pleaded by the plaintiff initially. In the opinion of this Court, even in a suit for permanent prohibitory injunction, relief declaring the title and possession of the plaintiff is a hidden relief, because permanent prohibitory injunction can only be granted when Court finds that plaintiff is in possession either on the basis of title or with some rights. Since, declaration is already involved in the suit of permanent prohibitory injunction, hence, merely adding relief for declaration declaring the transactions in question void, would not amount to change of the nature of the suit and cause of action. 6. Since, declaration is already involved in the suit of permanent prohibitory injunction, hence, merely adding relief for declaration declaring the transactions in question void, would not amount to change of the nature of the suit and cause of action. 6. Learned Trial Court, while allowing the amendment, has placed reliance on the judgment of the Andhra Pradesh High Court reported in T. Veera Venkata Rao v. Tikkana Venkata Ramana, 3 2010(3) CCC 243, as well as, on the judgment of the Apex Court reported in Sampath Kumar v. Ayyakannu 4 2002(7) SCC 559 and has held that if in a suit for permanent prohibitory injunction an amendment of plaint is sought to incorporate the relief of title, then such amendment must be allowed to avoid multiplicity of proceedings. Moreover, undisputedly in the present case, no evidence has been produced by the parties after the framing of the issues, hence, by allowing the amendment, defendants petitioners cannot be said having been prejudiced. Dismissed.