Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 552 (PNJ)

Sumeer Jassal v. Pushpa Rani

2012-04-16

M.M.S.BEDI

body2012
JUDGMENT Mr. M.M.S. Bedi, J.: - Plaintiff-petitioner aggrieved by the order dated 31.7.2009 passed by the Civil Judge (Jr. Divn.), Nakodar, has preferred this revision petition under Article 227 of the Constitution of India. Vide impugned order the application under Order 6 Rule 17 CPC, read with Section 151 CPC, for amendment of the plaint has been dismissed by the trial Court. 2. Brief facts, relevant for the decision of the present revision petition, are that petitioner, as a minor instituted a suit through his uncle Shri Rajinder Kumar Jassal, as next friend, against Pushpa Rani, defendant No.1 and others for declaration that he was owner in possession of the property in dispute after the death of Subhash Chander Jassal. By virtue of application under Order 6 Rule 17 CPC, he sought to incorporate the plea that as a matter of fact, he was born to Tripta Devi from the lions of Surinder Kumar. Tripta Devi was the real sister of Suresh Chander Jassal as Suresh Chander Jassal and Pushpa Rani had no issue, the petitioner was adopted by them by a ceremony of giving and taking. Since the day of adoption the plaintiff enjoyed the status of natural born son in the family of Suresh Chander Jassal and Pushpa Rani and at the time of giving material instructions to the counsel, the next friend of petitioner did not inform the said fact to the counsel. It was claimed that the amendment was necessary for the just and proper decision of the case. The defendants-respondents contested the application for amendment on the ground that the amendment has been sought with mala fide intentions and that the plaintiff-petitioner is to estopped to file the application for amendment on account of his own act and conduct. The plaintiff wants to change the nature of the case. It was pleaded in the reply that Surinder Kumar and Tripata Devi are the real father and mother of petitioner and that they had cleverly incorporated the name of Suresh Chander Jassal as father. The trial Court vide impugned order has dismissed his application inter alia on the ground that defendant Pushpa Rani is an innocent lady. It was pleaded in the reply that Surinder Kumar and Tripata Devi are the real father and mother of petitioner and that they had cleverly incorporated the name of Suresh Chander Jassal as father. The trial Court vide impugned order has dismissed his application inter alia on the ground that defendant Pushpa Rani is an innocent lady. After the death of her husband Suresh Chander Jassal in order to grab the property of Suresh Chander, a suit was got filed through the plaintiff- petitioner claiming that he was born to Pushpa Rani and Suresh Chander but when Pushpa Rani had filed an application that the petitioner was not born to Pushpa Rani as the condition of her uterus would indicate that she is unable to bear a child and sought permission that ultra scan of her uterus be performed, the petitioner took an absolutely contradictory stand in his application for amendment of the plaint but pleaded that he was not the natural son of Pushpa Rani and Suresh Chander Jassal but was son of real sister of Suresh Chander Jassal namely Tripta Devi who was married to Surinder Kumar and that he was adopted by Pushpa Rani and Suresh Chander. 3. Counsel for the plaintiff-petitioner has submitted that the plaintiff has been deprived of an important right to establish his right of inheritance to the property of Suresh Chander being his adopted son, by declining the permission to amend the suit. 4. On the other hand, counsel for the respondent has tried to highlight the conduct of the plaintiff-petitioner to establish that he has been taking contradictory pleas in order to harass the defendants. 5. After hearing the counsel for the plaintiff-petitioner and the defendants-respondents, there is no doubt that the plaintiffpetitioner seeks a declaration claiming the property of Suresh Chander Jassal who was real brother of Tripta Devi. Initially he had claimed the property of Suresh Chander Jassal in the capacity as son of Suresh Chander Jassal and Pushpa Rani but subsequently on achieving majority he wants to claim the property of Suresh Chander Jassal as adopted son. The dispute is amongst the family members. It is apparent from the circumstances that the plaintiff-petitioner had opted to change his stand after an application for medical examination was filed by Pushpa Rani to establish that she was unable to bear a child on account of condition of her uterus. The dispute is amongst the family members. It is apparent from the circumstances that the plaintiff-petitioner had opted to change his stand after an application for medical examination was filed by Pushpa Rani to establish that she was unable to bear a child on account of condition of her uterus. No doubt the application on the face of it appears to be mala fide. Provisions of Order 6 Rule 17 CPC prohibiting the amendment of the pleadings after the trial has commenced at the same time also permits that all such amendments shall be permitted as may be necessary for the purpose of determining the real question in controversy between the parties. In the present case, the controversy regarding the petitioner having been adopted by defendant Pushpa Rani and deceased Suresh Chander Jassal, requires to be finally settled for all times to come. The amendment though having been sought after framing of he issues, appears to be absolutely necessary for determining the status and rights of the plaintiff in the capacity as adopted son of Suresh Chander Jassal and defendant Pushpa Rani for claliming right of inheritance in the property of Suresh Chander Jassal. Allowing the amendment will not absolve the plaintiff-petitioner to establish by cogent evidence and in accordance with the Hindu Adoption and Maintenance Act, that he had actually been adopted or that he would be entitled to the property of Suresh Chander Jassal to the extent of half share in the property of Suresh Chander Jassal as per the rules of succession. It is not out of place to observe here that the plaintiff-petitioner has also filed a suit for injunction against the defendants-respondents claiming share in the property left by Suresh Chander Jassal. In the said application, a similar amendment has been allowed. In order to avoid contradictory adjudication of the same matter in two different cases, in the interest of justice, the amendment application deserves to be allowed, however, by compensating the defendants-respondents for unnecessary harassment caused due to delay application for amendment. 6. The revision petition is allowed. Impugned order dated 31.7.2009, is hereby set aside. Amendment application is allowed subject to costs of Rs.20,000/-. The plaintiff-petitioner will pay costs of Rs.20,000/- on next date of hearing before the trial Court or on any other date of hearing fixed by the trial Court for said purpose. 6. The revision petition is allowed. Impugned order dated 31.7.2009, is hereby set aside. Amendment application is allowed subject to costs of Rs.20,000/-. The plaintiff-petitioner will pay costs of Rs.20,000/- on next date of hearing before the trial Court or on any other date of hearing fixed by the trial Court for said purpose. It is made clear that if costs is not paid on next date of hearing or on any other date of hearing fixed by the trial Court for said purpose, this revision petition will be deemed to have been dismissed. 7. No further opportunity will be granted to the plaintiffpetitioner to pay the costs to bring on record the amendment sought for. ---------0.B.S.0------------