Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 578 (MP)

Jaspreet Kaur v. Ramkrishna

2010-05-19

A.M.NAIK, S.K.GANGELE

body2010
Judgment Abhay M.Naik, J. ( 1. ) This petition under Article 227 of the Constitution of India has been preferred against the impugned order dt. 7.9.2009 passed by the Court of First Civil Judge Class 2, Ashok Nagar, in Civil Suit No. 53A/09 allowing thereby an application for amendment in the plaint. ( 2. ) Plaintiffs/respondents No. 1 and 2 instituted a suit for declaration of title and perpetual injunction mainly with the allegations that the suit land belonged to Ramsingh and Ganpat Singh, who were real brothers. Plaintiffs are sons of Ramsingh. Ganpatsingh died issueless. Consequently, Ramsingh became the sole Bhumiswami and occupant of the suit land. Both were Bhumiswami and occupants of the land, though Bhu Adhikar and Rin Pustika was issued in the name of Ramsingh. After the death ofboth of them, plaintiffs alone became Bhumiswami and occupants of the suit land. They had sown the crop of gram in the year 2006. Husband of defendants/petitioners came on the site in February, 2007 and threatened the plaintiffs to harvest the crop of gram on the ground that the suit land was purchased by defendants/petitioners from Hariom Singh, the defendants/respondent No. 2. On enquiry, plaintiff learnt that Hariom Singh has executed it on the strength of a Will allegedly executed by Ganpat Singh in his favour, it is stated in the plaint that Ganpat Singh did not execute any Will in favour of Hariom Singh and the alleged Will is a forged and concocted document, Hence the suit. ( 3. ) Defendants/petitioners submitted their written statement with allegation that Ganpat alone was the Bhumiswami and occupant of the suit land, which was mutated in the name of Hariom Singh on the strength of order dt. 26.8.1997 passed by the Court of Naib Tahsildar, Ashok Nagar in case No. 10-A-96- 97. It was denied that Ramsingh, had any right, title or interest in the suit land. His possession was also denied. Defendants/petitioners having purchased the suit land from Hariom Singh vide registered sale deed dt. 13th February 2007 are Bhumiswami and occupants of the suit land. Accordingly, the suit is liable to be dismissed. ( 4. ) Issues were framed by the trial Court on 8.1.2008. Adjournments for evidence were obtained by the plaintiffs. However, an application for amenedment (Annexure P/3) was submitted by plaintiffs on 2.5.2009 before commencement of the evidence. 13th February 2007 are Bhumiswami and occupants of the suit land. Accordingly, the suit is liable to be dismissed. ( 4. ) Issues were framed by the trial Court on 8.1.2008. Adjournments for evidence were obtained by the plaintiffs. However, an application for amenedment (Annexure P/3) was submitted by plaintiffs on 2.5.2009 before commencement of the evidence. Leave was sought from the trial Court to incorporate paragraph 5 (A) in the plaint by way of amendment to the effect that the alleged Will was fraudulently prepared by impersonation. It bears forged thumb impression of Ganpat Singh as well as of Ramsingh. Both of them used to put signatures. They did not execute the alleged Will and did not put thumb impression on it. The alleged Will was prepared fraudulently, which is evident from the fact that the witnesses before the Naib Tahsildar have stated that Ganpat Singh and Ramsingh had signed the Will, whereas the said Will does not contain any signature at all it contains merely a forged thumb impression in the name of Ganpat Singh and Ramsingh. It is also evident from the fact that Ganapat Singh had earlier executed a registered Will dt. 17.8.1990, which contains signatures of Ganpat Singh as well as of Ramsingh. Relief pertaining of invalidity of order dt. 26.8.2007 of Naib Tahsildar was also sought to be added by way of amendment. ( 5. ) Defendants/petitioners by submitting their written reply opposed the application for amendment on various counts. ( 6. ) Learned trial Judge after hearing the arguments, allowed the application for amendment vide order dt. 7.9.2009. Hence the petition. ( 7. ) Shri K.N. Gupta, learned senior advocate and Shri D. D. Bansal, learned advocate made their respective submissions, which have been considered in the light of the material on record. ( 8. ) It is submitted on behalf of the petitioners that the proposed amendment is not based on subsequent events and the same having not been applied for with due diligence cannot be legally allowed. ( 8. ) It is submitted on behalf of the petitioners that the proposed amendment is not based on subsequent events and the same having not been applied for with due diligence cannot be legally allowed. Reliance for this purpose has been placed on the decision of the Apex Court in the case of Vidyabai and others v. Padmalatha and another 2009 (I) MPWN 69= (2009) 2 SCC 409 , wherein it is held that the Court has no jurisdiction to allow an amendment unless it is satisfied that in spite of due diligence the party could not have sought leave to amend before commencement of the trial. Aforesaid law has been pronounced in the light of Rule 17 of Order 6 CPC, which was substituted w.e.f. 1.7.2002. We feel it proper to reproduce the same - "7 7. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." Prior to substitution, there was no proviso to Rule 17. Dealing with the said proviso, it has been observed by the Supreme Court of India that the same has been couched in mandatory form and the Courts jurisdiction to allow an application for amendment is taken away unless the conditions precedent thereof are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. In the case of Vidyabai (supra), affidavits containing chief examination were produced by way of evidence and the case was fixed for cross examination on the said affidavits. In the case in hand, no such affidavit was produced up to the time, the application for amendment was submitted. Proviso to Rule 17 would come into play only after commencement of trial. In the case in hand, no such affidavit was produced up to the time, the application for amendment was submitted. Proviso to Rule 17 would come into play only after commencement of trial. Effect of the proviso is that if an application for amendment is submitted after commencement of trial, the litigant seeking amendment must establish that the application for amendment could not have been moved earlier in spite of due diligence. Analogically, if the trial is not commenced, proviso to Rule 17 will not come into play and the same in such a situation would have no applicability. This being so, the petitioners do not derive any benefit from Vidyabai decision (supra). ( 9. ) It is further submitted on behalf of the petitioners that mutation order was passed on 26.8.1997. Challenge to it by application for amendment dt. 2.5.2009 is hopelessly barred by limitation. The same, therefore, could not have been allowed. In the case of Ashutosh Chaturvedi v. S.Prano Devi and others ( AIR 2008 SC 2171 ) amendment was sought to seek preferential right in the light of section 22 of Hindu Succession Act after a period of 13 years from execution of the sale deed by the defendant. In this background, it was held that the fresh suit would have been barred on the date of application for amendment and therefore the amendment was not allowed. Similarly, reliance on AIR 2008 SC 2234 (Chander Kanta Bansal v. Rajinder Singh Anand is also of no meaning because the application for admendment was submitted after closure of evidence. ( 10. ) In the present case though the defendants/petitioners stated in the written statement that their predecessors namely Hariom Singh acquired title by virtue of Will, the said Will was not produced at all by the defendants. Since the Will was not made available to the plaintiffs even for inspection, they could collect the information only by obtaining certified copy from the proceedings from the Court of Naib Tahsildar, Ashok Nagar on 20th April 2009. Plaintiffs as per plaint averment are in possession of the suit land. They are within their right to approach the Court of law whenever disturbance is caused to their possession. They were not required to sue merely on the basis of mutation because mutation by itself does not confer title. Plaintiffs as per plaint averment are in possession of the suit land. They are within their right to approach the Court of law whenever disturbance is caused to their possession. They were not required to sue merely on the basis of mutation because mutation by itself does not confer title. Moreover, it may be seen that the plaintiffs, were not party to the mutation proceedings. Relief against the mutation order would be incidental to the prayer of the plaintiff for declaration of title. If the plaintiffs succeed in establishing that the alleged Will in favour of predecessor in title of defendants/petitioners is not genuine, the mutation order shall have to go. Since the suit for main relief if not beyond limitation, objection of the defendants/petitioners with regard to incidental relief has no force and the same is hereby rejected. ( 11. ) It is further contended that the nature of the suit would be changed by the proposed amendment. On perusal, it is found that no change in the nature of the suit would be caused by the proposed amendment. Otherwise, also, change in nature is not necessarily always a ground to disallow amendment in view of the law laid down by the Supreme Court of India in the case of Ragu ThilakD, John v. S. Rayappan 2001 (2) SCC 472 . ( 12. ) Lastly, it is submitted that the application for amendment being malafide could not have been allowed. This contention is also without any substance because no malafide could be demonstrated. ( 13. ) It maybe seen that the proviso to Rule 17 CPC being inapplicable, the litmus paper test for allowing amendment is whether the amendment is necessary for complete and correct adjudication of the controversy involved between the parties. We may profitably refer to the Supreme Court decision in the case of Rajesh Kumar Aggrawal v. K.K.Modi and Ors. ( AIR 2006 SC 1647 ) for this purpose, wherein it is held :- "16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the otheAr side. 17. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the otheAr side. 17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleadings. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. ( 14. ) In any case, allowing of amendment will not cause prejudice or loss to the defendants. Petitioners would have definitely opportunity to meet out the same on merits. We may refer here to the decision of the Supreme Court of India in the case of Puran Ram v. Bhaguram and another 2008 (II) MPWN 120= (2008) 4 SCC 102 , wherein it has been observed in para 18 as under :- "18. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial Court, was allowed. We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which, in the discretion of the trial Court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial Court when the order of the trial Court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial Court was either without jurisdiction or perverse or arbitrary." We may also successfully refer here the apex Court decision in the case of Sampath Kumar v. Ayyakannu and another (2002) 7 SCC 559 , wherein it has been observed :- "Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment." ( 15. ) Amendment with regard to the alleged Will is also to elaborate the earlier pleadings, whereby the validity of the alleged Will was disputed. Thus, no wrong has been committed by the learned trial Judge in allowing the amendment. We may also refer profitably to the Supreme Courts decision in the case of Baldev Singh v. Manohar Singh 2006 (HI) MPWN 97= (2006) 6 SCC 498 for this purpose. This being so, extraordinary power under Article 227 of the Constitution of India cannot be legally invoked in the present case. In view of the aforesaid discussion, writ petition is hereby dismissed, however, without order as to costs.