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2015 DIGILAW 1129 (HP)

Harbrinder Singh v. Rabinder Sidhu

2015-08-19

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India is directed against the order dated 4.12.2014 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan, H.P. in case No. 4-S/1 of 14/10 whereby the application filed by the respondent herein for amendment of the written statement has been allowed. 2. The petitioner has taken the exception to the order on the ground that apart from the delay there are certain admissions which have illegally been permitted to be withdrawn as a consequence of the application for amendment having been allowed. 3. Learned counsel for the respondent on the other hand would support the order passed by the learned trial Court. 4. I have heard learned counsel for the parties and have gone through the records of the case carefully. 5. The petitioner has placed the amendment sought for by the respondent in a tabular form and is reproduced as under: Para No.1. That the plaintiffs are owners in possession of ½ share in the property known as Kothi No. 20, survey No. 69 situated in Dagshai Cantt., Tehsil and District Solan, H.P. as per G.L.R. hereinafter referred to as the suit property. The suit property stands is in the name of S. Gurdial Singh in the record who died on 02.05.1997 and left behind widow one son and two daughters i.e. the plaintiffs, defendants No.2 and Shri Gurbax Singh, father of defendant No.1. Shri Gurbax Singh had also died and after his death the defendant No.1 has inherited his 1/4th share in the suit property. Para No.2. That the predecessor in interest of defendant No.1 filed suit for partition of the suit property in the court of Civil Judge (Junior Division), Chandigarh and the said Hon’ble Court has decided preliminary decree and held that the plaintiff and defendants in that suit are in possession of their 1/4th share each in the suit property. Accordingly, the plaintiffs are owners in possession of ½ shares in the suit property. Stand in the un-amended written statement “That the contents of para 1 to 3 of the plaint are matter of record and formal, hence not disputed.” Amendment sought: That the contents of para 1 to 3 of the matter of record and formal hence not disputed. Accordingly, the plaintiffs are owners in possession of ½ shares in the suit property. Stand in the un-amended written statement “That the contents of para 1 to 3 of the plaint are matter of record and formal, hence not disputed.” Amendment sought: That the contents of para 1 to 3 of the matter of record and formal hence not disputed. It is further submitted that earlier predecessor of the defendant No.1 late Shri Gurbax Singh Sandhu and the defendant No.2 were owner in the said property to the extent of 1/4th share each. It is further submitted that late Shri Gurbax Singh Sandhu has duly executed a registered Will in favour of the applicant/defendant No.2 on dated 03.02.2006 (copy enclosed). As such, now the defendant No.2 is co-owner in the suit property to the extent of ½ share. 6. It is not in dispute that the suit was filed somewhere in August, 2010, whereas, the present application came to be filed only on 6.4.2015. Now, in case the contents of the application for amendment annexed as Annexure P-7 is perused, it is simply stated that the respondent intends to amend the written statement and thereafter the amendment as proposed is set out. 7. The learned Court below allowed the application by negating the plea of the petitioner that by proposed amendment the admissions made in the written statement would be withdrawn. It was further held that no prejudice would be caused to the petitioner in case the amendment is allowed. 8. Rule 17 of Order 6 CPC reads as follows: “17. Amendment of Pleadings.- The Court may at any stage at 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.” 9. On the basis of the judgments delivered by the Hon’ble Apex Court it can be safely taken to be settled that the following principles should normally be kept in mind in dealing with the applications for amendment of the pleadings - (i) All amendments should be allowed which are necessary for determination of the real controversies in the suit; (ii) The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised; (iii) Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment; (iv) Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs; (v) Amendment of a claim or relief barred by time should not be allowed; (vi) No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; (vii) No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties; (viii) The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs; (ix) Error or mistake, which if not fraudulent, should not be made the ground for rejecting the application for amendments of pleadings.” These are only illustrative and not exhaustive. 10. It is a trite proposition of law, culled out from the various pronouncements, that bona fide amendments, vital for adjudication of the real question in controversy between the parties, should be allowed. It is also equally settled that the Court should be liberal in granting amendment, but the question herein is as to whether the respondent can without setting forth any ground for amendment be permitted to do so? 11. The application moved by the respondent is extracted below: “1. That the above titled suit is pending in this Hon’ble Court and the same is fixed for today i.e. 6.14.2013. 2. That the plaintiff has filed the present suit in respect of Kothi No. 20, Survey No. 69, situated in Cantonment Board Dagshai, Tehsil and District Solan, H.P. in the above suit the plaintiff hae claimed themselves to be owner of ½ share in the said Kothi. 2. That the plaintiff has filed the present suit in respect of Kothi No. 20, Survey No. 69, situated in Cantonment Board Dagshai, Tehsil and District Solan, H.P. in the above suit the plaintiff hae claimed themselves to be owner of ½ share in the said Kothi. It is further submitted that earlier the predecessor of the defendant No.1 late Sh. Gurbax Singh Sandhu and the defendant No.2 were owner in the said property to the extent of 1/4th share each. It is further submitted that late Sh. Gurbax Singh Sandhu has duly executed a registered Will in favour of the applicant/defendant No.2 on dated 3.2.2006 (copy enclosed). As such, now the defendant No.2 is co-owner in the suit property to the extent of ½ share. 3. That the applicant intend to amend para No.1 of the reply on merit, by adding the following facts therein, as under: “1. That the contents of para 1 to 3 of the matter of record and formal hence not disputed. It is further submitted that earlier the predecessor of the defendant No.1 late Sh. Gurbax Singh Sandhu and the defendant No.2 were owner in the said property to the extent of 1/4th share each. It is further submitted that late Sh. Gurbax Singh Sandhu has duly executed a registered Will in favour of the applicant/defendant No.2 on dated 3.2.2006 (copy enclosed). As such, now the defendant No.2 is co-owner in the suit property to the extent of ½ share.” 4. That the above amendment is necessary for the purpose of determining the real question in controversy between the parties. 5. That the above amendment is bonafide, formal and does not change the nature of the suit in any way. 6. That the above amendment could not be made earlier inspite of due diligence of the applicant. 7. That the respondents/plaintiffs are not going to suffer any harm in case the above amendment is allowed, whereas the interest of the applicant/defendant will greatly be jeopardized in case the above amendment is not allowed. 8. That the present application for amendment is supported by an affidavit. It is, therefore, very humbly prayed that in view of the above made submissions, this Hon’ble Court may kindly allow the present application for the amendment of the written statement filed by defendant No.2, as prayed above and in the interest of justice.” 12. 8. That the present application for amendment is supported by an affidavit. It is, therefore, very humbly prayed that in view of the above made submissions, this Hon’ble Court may kindly allow the present application for the amendment of the written statement filed by defendant No.2, as prayed above and in the interest of justice.” 12. It is evident from a bare perusal of the aforesaid application that there is not even a whisper in the entire application as to what has necessitated the application and how the amendment is necessary for the purpose of determining the real question in controversy. 13. Having failed to satisfy the Court on the aforesaid point, the learned counsel for the respondent would then vehemently argue that the proposed amendment was only clarificatory and expansion of the defence already taken. This submission however, cannot be accepted for the simple reasons that in the original written statement, the respondent/defendant had conceded that the plaintiffs were the owners in possession of the half share in the property. The property stood in the name of sardar Gurdial Singh, who had left behind, widow, one son and two daughters i.e. the plaintiffs, defendant No.2 and Gurbax Singh, father of defendant No.1, who too had died and after his death, the defendant No.1 had inherited his 1/4th share in the suit property. He had further conceded that his predecessor in interest had filed a suit for partition wherein a preliminary decree had been passed and the plaintiff and defendants were held to be in possession of their 1/4th share each in the suit property and in this way, the plaintiffs were the owners in possession of the half share in the suit property. 14. The defendant/ respondent conceded this position by admitting the contents of paras 1 to 3 of the plaint as being formal and a matter of record and had not disputed the same. Whereas, now in the amended written statement, he has clearly introduced an explanation by claiming that earlier his predecessor late Sh. Gurbax Singh and defendant No.2 were the owners to the extent of 1/4th share each but late Sh.Gurbax Singh had duly executed a registered Will in his favour on 3.2.2006 and as such, now he was a co-owner of the suit property to the extent of half share. Gurbax Singh and defendant No.2 were the owners to the extent of 1/4th share each but late Sh.Gurbax Singh had duly executed a registered Will in his favour on 3.2.2006 and as such, now he was a co-owner of the suit property to the extent of half share. Not only there was an enhancement in his share but even the Will which is alleged to have executed on 3.2.2006 was introduced for the first time. That apart, it appears that the application was malafide and had been introduced only after a substantive suit was filed by the opposite party in December 2012 for mandatory and permanent injunction at Chandigarh. The amendments as sought for cannot by any stretch of imagination be said to be clarificatory and therefore the learned Court below has ignored the well settled principles of law to the effect that the only those amendments which are germane to the dispute/issues involved in the suit can be allowed and that too, when atleast some foundation qua the same is raised in the pleadings. After all, the amendment cannot be allowed as a matter of right. 15. The learned counsel for the respondent would however, contend that this Court in exercise of supervisory jurisdiction under Article 227 cannot correct all errors of judgment of a Court or Tribunal, acting within the limits of its jurisdiction and correctional jurisdiction can be exercised only where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Powers cannot be exercised like a “bull in a china shop”. 16. There can be no quarrel with the proposition as canvassed by the learned counsel for the respondent. But this Court in exercise of its jurisdiction under Article 227 of the Constitution can always go into the legality and propriety of the order especially when there is a grave dereliction of duty or flagrant abuse of fundamental principles of law and justice as held by the Hon’ble Supreme Court in Jai Singh and other vs. Municipal Corporation of Delhi and another (2010) 9 SCC 385 . Therefore by intermingling an order which is palpably wrong and against the settled principles of laws, this Court while setting aside the same would not be acting like a “bull in a china shop”. 17. Therefore by intermingling an order which is palpably wrong and against the settled principles of laws, this Court while setting aside the same would not be acting like a “bull in a china shop”. 17. In view of the aforesaid discussion, the order dated 4.12.2014 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan, H.P. in Civil Suit No.4-S/1 of 14/10 allowing the amendment of written statement cannot be sustained and is therefore, set-aside. Resultantly, the present petition is allowed, leaving the parties to bear their own costs. Interim order dated 14.5.2015 is vacated. Pending application(s) if any, stands disposed of.