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2014 DIGILAW 378 (PNJ)

Rameshwar Dass v. Sudesh Kumari

2014-02-17

RAJIV NARAIN RAINA

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JUDGMENT Mr. Rajiv Narain Raina, J.: - Rameshwar Dass-petitioner/plaintiff (for short “the plaintiff”) filed a suit for possession by way of specific performance of agreement to sell dated 12th March, 2004 executed by him with seller-vendor Smt. Prem Lata. The sale deed could not be registered. The plaintiff brought a suit against Prem Lata. She appeared but was later proceeded ex parte. The plaintiff was informed that Prem Lata died on 25th September, 2006 during the pendency of the suit. He then came to know that Prem Lata sold the same land to the Kaushalya, wife of Ram Saran and their son Ramesh vide registered sale deed dated 29th October, 2004. 2. On these supervening events, the plaintiff took steps under Order 22 Rule 4, CPC for bringing LRs of Prem Lata on record. He applied under Order 6 Rule 17, CPC for amendment of the plaint to the effect that the sale deed dated 29th October, 2004 is null and void and ineffective in the presence of agreement to sell dated 12th March, 2004. The third request in the composite application was made under Order 1 Rule 10 CPC for impleading subsequent purchasers as defendant Nos.2 and 3. There was another significant supervening event occuring pendente lite with Kaushalya Devi dying which led her LRs to file an application under Order 9 Rule 13, CPC for setting aside the ex parte judgment and decree dated 19th December, 2011. 3. The learned Additional Civil Judge (Senior Division) passed the order dated 03th May, 2012 on the three prayer single application as follows:- “Heard on the application under order 6 Rule 17 CPC and under order 1 Rule 10 CPC for impleading the subsequent purchasers Kaushalya and Ramesh as party in the original suit, it has been alleged that during the pendency of the suit the property had been sold to these persons. Accordingly they are necessary parties to be impleaded in the present case under Order 6 Rule 17 CPC and under order 1 Rule 10 CPC. Accordingly application stands disposed off. A careful perusal of file goes to show that Smt. Prem Lata the original defendant had died. Application for impleading her L.Rs had been moved under order 22 Rule 4 CPC. Heard on the application. Accordingly application stands disposed off. A careful perusal of file goes to show that Smt. Prem Lata the original defendant had died. Application for impleading her L.Rs had been moved under order 22 Rule 4 CPC. Heard on the application. Keeping in view the fact that Smt. Prem Lata has died, her L.Rs are allowed to be impleaded as party in the present case. Let notice to L.Rs of deceased defendant Prem Lata be issued for 30.5.2012. Further a careful perusal of case file goes to show that now Kaushalya Devi has also died and her L.Rs. had also filed application for setting aside the ex-party Judgment and decree dated 19.12.2011 namely Ramesh Kumar, Neelam, Sushma Parveen and Kiran. Whereas plaintiff had in his application for impleading LRs had pleaded only one Ramesh Kumar. Since all the Lrs have come on record by moving application for setting aside ex-party judgment and decree dated 19.12.2011 wherein applicants are already party in the present case and LRs of defendant are already impleaded under my aforesaid order, for filing of amended title as well as for filing of written statement by newly added defendant and notice to LRs of Prem Lata to come upon 30.05.2012.” (underlined for emphasis) 4. The trial Court does not appear to have taken due care to specifically deal with the application under Order 6 Rule 17, CPC and has clubbed both the said requests and prayer under Order 1 Rule 10, CPC by simply holding that third parties are necessary parties and accordingly “application stands disposed off”. 5. Feeling aggrieved by the order to the extent that it permits amended title to be placed on record but not the amended plaint and permitting the newly added defendants to file their written statement meaning thereby in response to the original plaint, the plaintiff chose to file an application under Ss.151 & 152, CPC praying that the order be corrected to accomodate reception of the amended plaint on record since in pith and substance it has been so allowed by the trial Court by the above reproduced order dated 03rd May, 2012. He sought correction of the order. However, the learned Additional Civil Judge (Senior Division), Naraingarh has dismissed the application by the impugned order dated 06th February, 2014 as being devoid of merit. He sought correction of the order. However, the learned Additional Civil Judge (Senior Division), Naraingarh has dismissed the application by the impugned order dated 06th February, 2014 as being devoid of merit. The learned trial Court has rightly interpreted the order passed by the predecessor Judge and found the order not containing any specific directions permitting filing of the proposed amended plaint since the plaintiff was called upon to file only an amended title and not the amended plaint. In response to that order, the plaintiff had filed an amended title as directed. The successor Judge has opined that the order dated 03rd May, 2012 has not been challenged by the plaintiff in proceedings instituted before any superior Court and has attained finality. I find from the record that the plaintiff only sought correction of the order under S.152 read with S.151 CPC but did not file for review of the order or to call it in question through appropriate remedy. 6. The amendment sought by the plaintiff was to add para.6-A to the plaint to the following effect:- “6-A That the deceased Smt. Prem Lata has executed the sale deed dated 29.10.2004 registered vide perlekh No. 2655 in respect of the land in suit in favour of the defendants No.2 and 3, which is illegal null and void and the same is liable to be set aside; as she was not competent to sell the property during the subsistence of the agreement dated 12.03.2004.” 7. Consequentially, an amendment was sought to the heading of the plaint. It was pleaded in the composite application under Order 22 Rule 4; Order 6 Rule 17 and Order 1 Rule 10, CPC that the case was at the initial stage and no harm will be caused if the amendment is allowed as prayed for. Had separate applications been filed independently for the three prayers that would have been better course of action. It would have called upon the trial Court to pass separate orders. Even if it is taken as a hybrid procedure adopted and so long as the ingredients of all the three prayers were present in the application then the trial Court could have easily separated the three prayers by passing separate orders or through a consolidated order without getting mixed up. Even if it is taken as a hybrid procedure adopted and so long as the ingredients of all the three prayers were present in the application then the trial Court could have easily separated the three prayers by passing separate orders or through a consolidated order without getting mixed up. However, the thread of the error continued to run and has been compounded by the impugned order dated 06th February, 2014 rejecting the application under Ss.151 and 152, CPC. In the mess that has followed the clock would have to be put back to the stage as on 03rd May, 2012 for the trial Court to consider now passing a fresh order on the request for amending the plaint under Order 6 Rule 17, CPC even though it stands disposed off by the order dated 03rd May, 2012. 8. It is not clear from record, but I assume, that the plaintiff secured an ex parte judgment and decree dated 19th December, 2011 which has been challenged by the LRs of both Prem Lata and Kaushalya. In the meantime, the case reached the stage of rebuttal evidence and arguments, as the proceedings initiated under Ss151 & 152, CPC remained pending. The plaintiff had in his application sought impleading LRs and had thus impleaded only one Ramesh Kumar but there were others namely, Neelam, Sushma, Parveen and Kiran who were likely to be affected by the result of the suit. All of them had entered appearance and then have collectively sought setting aside of the ex parte judgment and decree dated 19th December, 2011 obtained behind the back of all the LRs. 9. Section 152 of the Code of Civil Procedure, 1908 deals with amendment of judgments, decrees or orders. The provision is meant to cure clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission which may at any time be corrected by the Court either on its own motion or on the application of any of the parties. Section 151 CPC is an invocation to the inherent power of the Court but where specific provisions occupy the field to do things in a particular manner or gives rise to procedural and substantive prayers deserving adjudication then Section 151 CPC is not to be invoked. 10. Section 151 CPC is an invocation to the inherent power of the Court but where specific provisions occupy the field to do things in a particular manner or gives rise to procedural and substantive prayers deserving adjudication then Section 151 CPC is not to be invoked. 10. Prem Lata died on 25th September, 2006 after selling the suit land through a registered sale deed dated 29th October, 2004 in favour of third parties, who are now LRs in the suit. The plaintiff does not disclose in this petition of knowledge of date of death or of the date of coming to know of the sale deed executed in favour of third parties. The composite application consisting of three independent prayers was filed on 16th July, 2007. The amendment sought is against defendant Nos.2 and 3 only and not the remaining LRs. The plaintiff clearly had a remedy against the order dated 03rd May, 2012 before this Court through a request under Article 227 of the Constitution of India which was not availed and therefore the learned Additional Civil Judge (Senior Division), Naraingarh may not be incorrect in its impugned order dated 06th February, 2014 holding that the order dated 03rd May, 2012 has attained finality. In the prayer clause of this petition even the date of the order dated 03rd May, 2012 has been mis-typed 05th July, 2012. The challenge is restricted to the impugned order dated 06th February, 2014 declining application under Ss.151 and 152 for correction of the order. This is not a case of mere correction as suggested by the learned counsel. It is for grant of substantive relief under Order 6 Rule 17, CPC. 11. I have given careful thought to the order dated 03rd May, 2012 and what to do about it. The order notices prayers under Order 6 Rule 17, CPC and order 1 Rule 10, CPC. The trial judge finds the applicants under Order 1 Rule 10, CPC as necessary parties and so impleads them not under Order 1 Rule 10, CPC but under both Order 6 Rule 17 and Order 1 Rule 10, CPC. The trial judge proceeds to hold the “application stands disposed off”. There is no reasoning contained in the order with respect to prayer under Order 6 Rule 17, CPC. The trial judge proceeds to hold the “application stands disposed off”. There is no reasoning contained in the order with respect to prayer under Order 6 Rule 17, CPC. Therefore, it was not a case of mere correction of order or judgment but was one for either review or judicial review before the superior Court praying for partly setting aside of the order dated 03rd May, 2012. If there was any ambiguity in the order, the plaintiff should not have wasted time to set about to achieve his purpose under Ss.151 and 152, CPC. In this petition, I find that there is no challenge to the order dated 03rd May, 2012 and it is accepted by the plaintiff as correct but yet he has lived in the misplaced hope that it requires merely a correction. In any case, an application under Order 6 Rule 17, CPC cannot be decided ex parte or without recording reasons after hearing both sides. The remaining LR defendants not impleaded by the plaintiff have valuable right to put their case forward for and against the amendment prayed for and to present their written statement. 12. I, therefore, find no valid cause or reason to interfere in the matter to set about undoing the mess created by the plaintiff himself who was dominus litis and in full control of his suit. Besides, nothing stopped the plaintiff from challenging independently the registered sale deed dated 29th October, 2004 executed by Prem Lata before she is alleged to have entered into an agreement to sell the suit land on 12th March, 2004 with the plaintiff for which limitation may have run out. The date of knowledge of existence of the sale deed lies in obscurity. It can also not be said or held that the plaintiff was bonafide in pursuing the inappropriate application under Ss. 151 & 152, CPC to the extent of prayer for amendment of the plaint under Order 6 Rule 17, CPC to earn benefit of Section 14 of the Limitation Act, 1963. Although the order dated 03rd May, 2012 appears lacking in application of mind but since the said order is not specifically impugned in this petition, the challenge being limited to the subsequent order dated 06th February, 2014, in which no legal infirmity or perversity of reasoning is found present, this Court refrains from interfereing in the matter. Although the order dated 03rd May, 2012 appears lacking in application of mind but since the said order is not specifically impugned in this petition, the challenge being limited to the subsequent order dated 06th February, 2014, in which no legal infirmity or perversity of reasoning is found present, this Court refrains from interfereing in the matter. I am guided by the principle that no relief can be granted by Court which is not prayed for. Neither do I find this a fit case to intervene in order to do substantial justice between the parties or to avert miscarriage of it. The suit is in progress for setting aside the ex parte decree obtained by the plaintiff behind the back of the LRs. The plaintiff is the master of the lis and remains free to establish his case for specific performance of the agreement to sell in order to obtain a decree in his favour. He is also at liberty to oppose the prayer for setting aside the ex parte decree, if that remains pending adjudication. The petition therefore fails and is dismissed. ------------------