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2014 DIGILAW 1722 (HP)

Rubi Sood v. Major (Retd. )Shri Vijay Kumar Sood

2014-11-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chauhan, J. This application has been preferred by the applicants/ respondents under Order 6 Rule 17 read with Sections 151 and 153 CPC or in the alternative under Order 23 Rule 1 CPC with the prayer that the applicantsplaintiffs be allowed to amend the plaint or in the alternative the plaintiffs be allowed to withdraw the suit with permission to file fresh on the same cause of action. 2. It is averred by the applicants-plaintiffs that they are owners of 1/4th undivided share in Shop No.72, Lower Bazar, Shimla standing built upon land comprised in Khasra No. 313, Bazar Ward, Barra Shimla and during the course of arguments in the case, it was found that due to an oversight and inadvertent mistake, history and background of the title of the plaintiffs was not been given in the plaint, though evidence was led in this behalf which is a technical defect in the pleadings of the plaintiffs. It is further averred that the plaintiffs are owners of 1/4th share in the shop in question through their predecessors-in-interest late Shri Kedar Nath Sood and Shri Sansar Chand Sood. During the pendency of the case, the original plaintiff No.2 and 3 have died and their legal representatives have been brought on record. Similarly, original defendant No.1 and 2 have also died and name of defendant No.2 has been deleted from the array of the defendants and legal heir of original defendant No.1 has been brought on record as appellant No.1. 3. The plaintiffs have averred that with a view to overcome the technical defect in the pleadings, lest the plaintiffs are non-suited on this count, they want to amend the plaint by adding Para No.2A to the plaint to the following effect:- ?2A. That the said 1/4th share in the suit property and adjoining shop No.72/1 originally belonged to Shri Tikhu Mal s/o Shri Mukadi Mal and Shri Khusi Lal, s/o Shri Hira Lal Sood who vide sale deed dated 15th February, 1926 duly registered in the Office of the Sub Registrar, Shimla, sold their undivided ¼ share in the said properties 72 and 72/1 in favour of Shri Mukand Lal s/o Shri Bhandari Mal and Shri Sansar Chand s/o Shri Shiv Dayal. Shri Mukand Lal aforesaid sold his 1/8th share in shop No.72 and 72/1 to Shri Kedar Nath, s/o Shri Shiv Dayal vide sale deed dated 15.2.1926 duly registered with the Sub Registrar, Shimla. In the original sale deed of 1926 shop No.72 by mistake and drafting error has wrongly been mentioned as shop No.72/2 and the said mistake has also been repeated in the subsequent sale deed of Shri Mukand Lal. The said inadvertent mistake was also carried forward in the Municipal records for some time but later on rectified when mistake was discovered. In fact on Khasra No.313, Bazar Ward, Barra Shimla there are only two shops, that is shop No.72 and 72/1. Shop No.72/2 has never been in existence at all and reference to shop No.72/2 in the sale deed is a drafting error/defect. In the sale deeds of 1926 and subsequent sale deed of December, 1977 executed by Dr.Mukand Lal in favour of Shri Kedar Nath, said two shops are properly identified by permanent boundaries which fact is also mentioned in the sale certificate of Shri Himat Singh, issued by the Custodian Department namely, on the north Alley and passage, on the south Lower Bazar, on the East Alley No.9 and on the west house of Bhedu Mal Mohinder Chand and dimensions of the properties are on the east 21 feet, on the west 25 feet, on the south 29 feet, on the north 28 feet, total being 644 square feet. Even as on the date the boundaries of property No.72 and 72/1 are the same and the dimensions of shop No.72 and 72/1 on the spot are also the same as also in the revenue record right from 1907 onward till date. The said two properties are encompassed in the said dimensions in the papers as also in the record. Thus reference of shop No.72/2 in sale Deeds was an error/defect. In fact, reference to 72/2 is reference to shop No.72.? 4. It is also averred that due to subsequent developments in the wake of death of parties, the plaintiffs want to make consequential amendments in Para 1 of the plaint to bring the pleadings in consonance with latest memo of parties by deleting the last two lines of Para 1 of the plaint and substitute it with following lines:- ?deceased defendant No.1 late Shri Ajay Kumar and grandmother of Plaintiff No.1 and 3 to 7? Similarly, to bring the pleadings in consonance with amended memo of parties, Para 2 of the plaint would require formal amendments by adding the word ?original? a in line No.4 after the word i.e. and in line No.6 after the word inherited by and before the word plaintiff by and in last line of Para 2 before the word defendant No.1. 5. The plaintiffs have averred that the said amendments are necessary to determine the real matter in controversy between the parties. The plaintiffs do not want to lead any further evidence in the case after amendment as they have already led evidence in the case to the effect that shop No.72/2 was never in existence. No prejudice will be caused to the defendants in case the amendment is allowed. It is further averred that the amendment so sought is only clarificatory in nature giving the history and background of the property which was omitted in the original plaint, though oral and documentary evidence about the history and background of the property has been led by the plaintiffs. Smt.Udhi Devi was owner of 3/4th share in shop No.72, Lower Bazar, Shimla and the only question involved is as to who is owner of remaining 1/4th share and to determine this point, the amendment is all the more necessary. It is averred that the suit is likely to fail for the said technical and formal defect in the pleadings, though evidence has come that on the spot there are only two shops i.e. shop No.72 and 72/1. Lastly, it is averred that in these circumstances there are sufficient grounds for allowing the plaintiffs to withdraw the suit and institute fresh suit, if necessary, for the subject matter of the suit or part of claim thereof with permission to file the same on the same cause of action, hence this application. 6. The non-applicants/appellants filed reply to this application and stated that a joint application under Order 6 Rule 17 and under Order 23 Rule 1 CPC is not competent and maintainable and the present application is liable to be dismissed on this score alone as the applicants have failed to make out a case for granting permission to them for filing fresh suit on the same cause of action. There is no technical or formal defect in the plaint upon which the suit of the applicants may fail and the same is likely to be dismissed on merits. 7. It is averred by the non-applicants/appellants that the application under Order 6 Rule 17 CPC is not competent and maintainable at this belated stage after a period of 25 years of filing of the original suit without explaining as to why the said amendment was not applied for at the earlier stage. The grounds stated in the application are not sufficient grounds for allowing the applicants to amend the plaint by changing the entire complexion of the suit. In case the amendment so sought is allowed, it would totally displace the non-applicants and set up a new case in favour of the applicants. The case was finally heard by the trial Court where also a similar plea was raised on behalf of the non-applicants, however, the applicants have been insisting upon what they had stated in the plaint. After the judgment was passed by the trial Court, the matter was again argued on behalf of the non-applicants before the appellate Court where no such plea was raised by the applicants and got a judgment from the appellate Court. It is after the present appeal which was filed in the year 2000, in which the applicants had filed a caveat petition and no such pleas were raised and it is only after the matter was partly heard by the Hon'ble Court that the present application has been moved. Right from the year 1926, the applicants and their predecessors-in-interest had been accepting what was written in the sale deeds and even mutations were attested in favour of the predecessors-in-interest of the applicants and after the death of predecessor-ininterest of the applicants, the mutation of inheritance was further attested in the presence of the applicants where also no such plea was raised. The original owners of the property never raised an objection that shop No.72/2 was wrongly mentioned in the sale deeds and the sale deeds were never challenged by them and even in the plaint, said sale deeds have not been challenged by the applicants. 8. The original owners of the property never raised an objection that shop No.72/2 was wrongly mentioned in the sale deeds and the sale deeds were never challenged by them and even in the plaint, said sale deeds have not been challenged by the applicants. 8. It is also averred that the present application is also not maintainable in view of the fact that the original plaint has been signed and verified by Shri Vijay Kumar Sood, whereas, the present application has been sighed and supported by an affidavit of Shri Ashwani Kumar Sood, who appeared as PW-1 and nowhere stated that in place of property No.72, 72/2 had been mentioned. In his statement on oath, he has stated that 72/2 has been mentioned by mistake in place of 72/1 in the sale deed dated 15.2.1926. There is no technical or formal defect in the pleading as mentioned by the applicants and the application is also not maintainable in view of the fact that the proposed amended plaint has not been filed along with the application. The application is also not maintainable in view of the fact that Shri Deepak Sood, respondent No.6, is being represented by separate counsel, who has not signed the application and as such some of the applicants cannot be allowed to amend the plaint. 9. On merits, it is admitted that the plaintiffs are owners of 1/4th undivided share in shop No.72, Lower Bazar,Shimla, however, it is specifically denied that during the course of arguments, it was found that due to oversight and inadvertent mistake, history of the title of the plaintiffs has not been given in the plaint, though the evidence has been led in this behalf. It is denied that the said omission on the part of the plaintiffs is a technical or formal defect in the pleadings of the plaintiffs and further denied that the plaintiffs have been maintaining that they are owners of 1/4th share in the shop in question through their predecessor-in-interest late Shri Kedar Nath Sood and Shri Sansar Chand Sood and purchased 1/8th share of Shri Mukand Lal in shop No.72/2 and 72/1 in the year 1971 vide registered sale deed which was never challenged and the mutation was also attested on the basis of sale deeds of the year 1926 and 1971. 10. 10. The non-applicants have further averred that there is neither technical defect in the pleadings nor is any amendment required in the same and the applicants by way of amendment cannot be allowed to set up a new case after lapse of 25 years, especially the matter having been decided by two Courts and the applicants had ample time to seek amendment. Tikhumal and Hira Lal Sood had transferred 1/4th share in shop No.72/2 and 72/1 in favour of Mukand Lal, son of Shri Bhandari Mal and Shri Sansar Chand son of Shri Shiv Dayal. Mukand Lal further sold what he had purchased from Tikhumal and Hira Lal through sale deed executed in the year 1971. Tikhumal and Hira Lal Sood had never been the owners of Shop No.72 to the extent of any share and as such they had no right to transfer 1/4th share in shop No.72, Lower Bazar, Shimla. It is specifically denied that it was by mistake and drafting error that the shop No.72/2 was mentioned in place of 72 in the two sale deeds and subsequent mutations and revenue records. The original owners as well as their successor-in-interest never challenged the sale deeds or laid claim before any authority with respect to the same. It is denied that there were only two shops in the year 1926. 11. It is further claimed that as per the plan submitted by the applicants, there were three shops on the spot which fact is also confirmed in the sale deed executed by Himat Singh in favour of Smt.Udhi Devi and the boundaries mentioned in the sale deed executed by Shri Mukand Lal also do not tally with the sale deed executed in favour of Smt. Udhi Devi nor any dimension given in the sale deed. It is also denied that the reference to shop No.72/2 is in fact reference to shop No.72 and the non-applicants reserve their rights to file a complete reply to the para sought to be added by the amendment in case the amendment is ultimately allowed. 12. The non-applicants have denied that the amendment sought is necessary to determine the real controversy between the parties, rather applicants by way of amendment want to set a new cause of action which is not permissible under the law and even otherwise the amendment cannot be allowed to make it in consonance with the evidence. 12. The non-applicants have denied that the amendment sought is necessary to determine the real controversy between the parties, rather applicants by way of amendment want to set a new cause of action which is not permissible under the law and even otherwise the amendment cannot be allowed to make it in consonance with the evidence. The evidence is to be in consonance with the pleadings. The present application is an abuse of process of law and in case the application is allowed, the non-applicants will be greatly prejudiced. No copy of the proposed amended plaint has been supplied to the non-applicants. It is denied that the amendment is clarificatory in nature. The amendment is likely to change the entire complexion of the suit. It is denied that Udhi Devi was owner of 3/4th share in the shop, however, even if it is presumed that she was owner of 3/4th share in the shop, it will not lead to any inference that remaining 1/4th share is owner by the applicants. The fact regarding 1/4th share in the property can be decided on the basis of pleading and evidence led by the parties. It is also denied that in the evidence it has come on record that there are only two shops. There are no grounds for allowing the plaintiffs to withdraw the suit with permission to file a fresh suit on the same and similar cause of action with respect to the property which is the subject matter of the suit and in case the applicants want to withdraw the suit unconditionally, the non applicants have no objection for the same. The non-applicants accordingly prayed for dismissal of the application with costs. I have heard the learned counsel for the parties and gone through the records of the case. 13. The learned counsel for the applicants-respondents has argued that there is a technical defect in the pleadings and the proposed amendment is necessary to adjudicate the real matter in controversy between the parties and the applicants-respondents also do not want to lead any further evidence in case the amendment is allowed as the evidence in tune with the proposed amendment is already on record. To my mind, it is not so simple a proposition as has been argued by the learned counsel for the applicants-respondents. To my mind, it is not so simple a proposition as has been argued by the learned counsel for the applicants-respondents. The case has been heard at length on 28.08.2014 and 29.08.2014 and when during the course of hearing the respondents were confronted with their evidence being not in tune with the pleadings, they sought time for seeking amendment of the plaint. 14. A perusal of the proposed amendment would show that the same has been preferred only with the intention to fit the pleadings with the evidence already adduced which is not permissible in law. (Refer: AIR 1991 Orissa 1 Mahendra Meheta and others v. Amaresh Sarkar, AIR 1967 Orissa 58 ( ( 1967) 33 Cut LT 65) (Khali v. Sadhaba Bewa), AIR 1953 Cal 15 : ( (1952) 89 Cal LJ 140) (Nrisingh Prasad Paul v. Steel Products Ltd.), AIR 1949 Ajmer 19 ( Beni Pershad Bhargava v. Narayan Glass Works, Makhanpur), 1971 (2) C.W.R 1004 (Jhara Dasiani v. Magata Das), AIR 1950 Mad 32 : ( (1949) 2 MLJ 421 ), (Bhagavatula Gopalakrishnamurthi v. Dhulipalla Sreedhara Rao), AIR 1930 PC 57 (1): (58 MLJ 7) (Siddik Mahomed Shah v. Mt. Saran) and (1983) 55 Cut LT 219 ( Hindustan Commercial Corporation, Cuttack v. Bank of Baroda, Cuttack). 15. It is well settled that if the evidence is not in consonance with the pleadings, it may be thrown out and, at this stage, the plaintiffs-respondents cannot be permitted to file this application as the same is not bonafide and it is intended to fill-up lacunas in the case. In case the amendment is allowed, the other party cannot be placed in the same position as if the pleadings had been originally correct. The injury now caused to the defendants would be such that the same cannot be compensated in any terms much less in monetary terms. 16. Insofar as the question of permitting the plaintiffs to withdraw the suit, at this stage, with liberty to file the same on the same cause of action is concerned, this prayer also cannot be granted to them. 17. 16. Insofar as the question of permitting the plaintiffs to withdraw the suit, at this stage, with liberty to file the same on the same cause of action is concerned, this prayer also cannot be granted to them. 17. Order 23 Rule 1 CPC reads as under:- ?[1.Withdrawal of suit or abandonment of part of claim.- (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]? 18. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]? 18. The only kind of defect which attracts the applicability of Order 23, Rule 1 (3) CPC is formal defect. The formal defect is a defect of form described by a rule or procedure. The formal defect connotes defects of various kinds not affecting the merits of the case. In Debashis Singha Roy & Ors. vs. Tarapada Roy & Ors. 2001 (2) CCC 30 (Cal.), the Calcutta High Court has held that non-joinder of parties and non-description of suit land is not a formal defect. 19. A suit cannot be allowed to be withdrawn for a defect of substance. (See: Ramrao Bhagwantrao Inamdar and another vs. Babu Appanna Samage and others AIR 1940 Bombay 121 (FB). The court cannot be oblivious to the fact that no litigant can be allowed to file suit one after another on the same cause of action only for the purpose of keeping alive the dispute between the parties to be reopened at the discretion of the plaintiff. This would not only causes harassment to the parties against whom it is filed, but it is unnecessary impart on the public exchequer and unnecessary load on the court time. The grant of leave envisaged in sub-rule (3) of rule -1 of Order 23 CPC is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection because this provision is founded on public policy. 20. It is settled law that permission to withdraw the suit with liberty to file a fresh suit cannot be granted mechanically and the court is duty bound to satisfy itself that there exist proper grounds for granting such permission. Such permission cannot be resorted to when the claim set out in the original suit is weak. The Hon'ble Supreme Court in K.S. Bhoopathy and others vs. Kokila and others (2000) 5 SCC 458 has held as follows:- ?13. The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Such permission cannot be resorted to when the claim set out in the original suit is weak. The Hon'ble Supreme Court in K.S. Bhoopathy and others vs. Kokila and others (2000) 5 SCC 458 has held as follows:- ?13. The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in subrule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1 (3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases. 17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial Court and the first appellate Court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate Court they took recourse of Order XXIII, Rule 1 (3), C.P.C. and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower Court.? 21. A mere statement by the plaintiff that there is a formal defect in the plaint and form in the suit is not enough. As already observed earlier, a formal defect is a defect of form unrelated to the case of the plaintiff on merits and is required to be spelt out specifically in the application seeking permission to withdraw the suit. 22. Accordingly, there is no merit in the application and the same is dismissed with no order as to costs.