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2013 DIGILAW 1602 (PNJ)

Bhawani Singh v. Krishna Nand

2013-12-04

RAJAN GUPTA

body2013
JUDGMENT Mr. Rajan Gupta, J. (Oral):- Present revision petition is directed against the order dated 11.11.2013, passed by the trial court whereby application filed by plaintiff for amendment of plaint has been rejected. 2. Mr. Aggarwal, learned counsel for the petitioner has assailed the order. According to him, application for amendment was moved before any evidence was led before the court. Same has been rejected vide order dated 11.11.2013. According to him, he merely wanted to add one para 9-A in the plaint alongwith certain consequential reliefs. However, trial court has erroneously rejected the prayer. 3. Plea has been vehemently opposed by Mr. Jain, learned counsel representing the caveator/respondents No.1 & 2. According to him, the suit has been pending for last three years. Petitioner never made any such prayer for considerable period. Besides, a status quo order is operating against the defendants. Any amendment made in the plaint would seriously prejudice the defendants. 4. I have heard learned counsel for the parties and given careful thought to the facts of the case. 5. It appears that plaintiffs preferred a suit seeking a declaration that sale-deed dated 24.1.2006 was null and void and result of fraud and misrepresentation. He also sought certain consequential reliefs. After defendants filed their written statement, issues were framed by the court. Petitioner claimed that he came to know about a forgery committed on 23.1.2013. The factum had to be incorporated in para 9-A and the relief clause of the plaint. The relevant portion reads thus:- “(i) That a new para No.9A may kindly be allowed to be added in the plaint as under:- 9-A, that the plaintiffs have come to know that concerned patwari and kanungo have mischievously tampered with khasra girdawari andmade the entry in favour of defendants showing their possession in khasra girdawari for the crops of Kharif 2009. Although the plaintiffs are in physical possession of the suit land since their ancestors possession and also there is stay order dated 08.01.2010. The Patwari and revenue officers have not given any notice in writing or oral notice to plaintiffs prior to tampering the khasra girdawari from the names of the plaintiffs in the names of defendants and if notice is not served on the plaintiffs, then it is against the standing instructions of the FCR, Revenue. The Patwari and revenue officers have not given any notice in writing or oral notice to plaintiffs prior to tampering the khasra girdawari from the names of the plaintiffs in the names of defendants and if notice is not served on the plaintiffs, then it is against the standing instructions of the FCR, Revenue. During the pendency of the present suit and moreover, after receiving the interim stay order dated 08.01.2010, the revenue authorities/officials have no concern to change the khasra girdawari during the pendency of the present suit. Hence, the tampering of the khasra girdawari is an illegal action of the revenue authorities at the instance of the defendants, therefore, the entry made by the patwari/kanungo in khasra girdawari is illegal and without jurisdiction and is illegal to be set aside and not binding on the plaintiffs. The entry fabricated in khasra girdawari is subsequent event. (ii). Though, that before the words “Any other relief” and after the words with costs in prayer clause of plaint, the following words be added: “It is further respectfully and most humbly prayed that the alleged change of khasra girdawari by the patwari/kanungo and other revenue authorities in the names of defendants concerning the suit land of Kharif 2009, by way of tempering the khasra girdawari is illegal,null, void, inoperative, ineffective, ultra-vires without notice to the plaintiffs and without hearing the plaintiffs, without jurisdiction, against the standing instructions of the F.C.R., fake, forged, manipulated and not binding on the right of the plaintiffs and be set-aside and cancelled, concerning the change since Kharif 2009 onwards in khasra girdawari,may kindly be passed in favour of the plaintiffs and against the defendants with costs. Thereafter, prayed for allowing the present application.” 6. The trial court rejected the prayer observing that plaintiffs had not been able to show that despite due diligence, they could not seek the amendment earlier. As the trial had commenced, he could not be allowed to amend the plaint. In my considered view, order passed by the court below deserves to be set-aside. Admittedly, application was moved when proceedings in the suit were at initial stage as no evidence had been led by either party. In a recent judgment of the apex court reported as Abdul Rehman and another vs. Mohd. In my considered view, order passed by the court below deserves to be set-aside. Admittedly, application was moved when proceedings in the suit were at initial stage as no evidence had been led by either party. In a recent judgment of the apex court reported as Abdul Rehman and another vs. Mohd. Ruldu and others, [2012(6) Law Herald (SC) 4726 : 2012(4) Law Herald (P&H) 3486 (SC)] : (2012) 11 Supreme Court Cases 341, it has been held as follows:- “17. In Pankaja v. Yellapa this Court held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title. 18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties. 7. Keeping in view the facts and circumstances of the case, I am of the considered view that amendment in the plaint deserves to be allowed. There is nothing to show that amendment would change the nature of the suit. In view of ratio of judgment in Abdul Rehman’s case (supra), I hereby allow this revision petition. Impugned order is, thus, set-aside. This, however, will be subject to payment of Rs.10,000/- as costs to be remitted to defendant/respondents No.1 & 2.