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2015 DIGILAW 1351 (HP)

Data Ram v. Ram Dayal

2015-09-23

SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur 1. The instant petition is directed against the impugned order rendered on 21.01.2015 by the learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P., whereby, he came to dismiss an application preferred before him by the petitioner herein/defendant before the learned trial Court, under Order 6, Rule 17 of the CPC whereby its leave was sought to incorporate in the written statement the proposed amendments which are ad verbatim reproduced hereinafter:- “The father of the plaintiff number 1 and husband of plaintiff No.2 had pruchased the land to the extent of his share comprised in Khata/khatauni No.27/39, khasra Nos. 50, 51, 60, 61, 78, 154, 271, 279, 342, 346, 412, 419, 458, 476, 481, 521, 517, 531, 536, 542, 550, 565, 571 and 629, kitas 24, measuring 28-06 bighas, situated in Mauza Kothi, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan, (H.P.) vide Sale Deed No.148, dated 29.01.2002, Sale Deed No.501 dated 22.04.2000, Sale deed No.497 dated 20.04.2000 and Sale Deed No.284, dated 25.02.2000. The defendant had also purchased the land to the extent of his share out of the above mentioned land vide the above mentioned Sale Deeds alongwith the father of plaintiff number and husband of plaintiff number 2. Likewise, the father of the plaintiff number 1 and husband of plaintiff number 2 had purchased the land to the extent of his share comprised in khata/khatauni No.23/33 beairng khasra Nos. 448, 484, 537 and 569, kitas 4, measuring 0-12 bighas situated in muaza Kothi, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan (H.P.) vide Sale Deed No. 19 dated 10.01.1992. The defendant had also pruchased the land to the extent of his hsare out of the above mentioned land comprised in khata/khatauni No.23/33 alongwith the father of the plaintiff number 1 and husband of plaintiff number 2 vide Sale Deed No.19 dated 10.01.1992. That apart, the father of plaintiff number 1 and husband of plaintiff number 2 late Sh. Ram Singh, defendant's father late Sh. Ramu along Ram Saroop and Shri Hari Chand (the brother of Sh. Ram Singh and Sh. That apart, the father of plaintiff number 1 and husband of plaintiff number 2 late Sh. Ram Singh, defendant's father late Sh. Ramu along Ram Saroop and Shri Hari Chand (the brother of Sh. Ram Singh and Sh. Ramu alias Ram Saroop) had jointly purchased the land some where in the year 1958, in equal shares, as comprised in Khata/Khatauni No.17/48 to 17/52, Kitas 49, measuring 37-03 bighas as per the copy of jamabandi for the year 1960-61 situated at Mauza Kothi, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan, (H.P.) qua which Mutation No.103 dated 10.01.1962 duly stands attested and sanctioned in their favour in the revenue record. Thus the land as comprised in Khata/khatauni No.24/34 of the suit land bearing khasra Nos. 63, 84, 147, 148, 149, 201, 205, 212, 282, 284, 356, 357, 360, 411, 417, 420, 431, 433, 445, 449, 479, 491, 510, 538, 541, 545, 562, 573, 576, 580, 581, 590, 620 and 626, kitas 34, measuring 36-10 bighas situated at Mauza Kothi, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan, (H.P.) came into existence after consolidation operations out of the land so purchased jointly by the above named Sh. Ram Singh, Sh. Ramu alias Ram Saroop and Sh. Hari Chand some where in the year 1958 as duly mentioned in the copy of jamabandi for the year 1961-62 in respect of Khata/Khatauni No.17/48 to 17/52 and figuring thereafter in all other subsequent jamabandis upto the carrying out of and completion of consolidation operations in the are in the late eighties. There is no other land out of which the suit land as comprised in Khata/Khatauni No.24/34 may have devolved upon the defendant and the father of the plaintiff number 1 and husband of plaintiff number 2 and other co-owners of the same in any manner whatsoever. This kind of clarification is necessary to determine the true nature and character of the suit land so as to determine the real question in controversy between the parties to this suit. Thus, under the above mentioned facts and circumstances of the case, the suit property is self acquired property of the father of the plaintiff number 1 and husband of plaintiff number 2 for all intents and purposes.” 2. The application was contested by the plaintiffs/respondents herein. Thus, under the above mentioned facts and circumstances of the case, the suit property is self acquired property of the father of the plaintiff number 1 and husband of plaintiff number 2 for all intents and purposes.” 2. The application was contested by the plaintiffs/respondents herein. The leave qua the incorporation of an amendment in the written statement qua the factum of the suit property partaking the character of it being the self acquired property of the predecessor-in-interest of the plaintiffs, was, in its impugned order, declined by the learned trial Court on the strength of the factum aforesaid while being within the defendant's/petitioner's knowledge at the stage contemporaneous to the institution of the written statement at his instance to the plaint, hence his having come to seek its leave for its incorporation in his written statement at a stage when the defendant's evidence after closure of the plaintiffs' evidence was yet to commence was not only a highly belated concert on his part besides, the permission to incorporate the aforesaid fact in the written statement did not fall within the ambit of the exception, to the bar against amendment of pleadings being impermissible after the commencement of the trial, constituted in manifestation of material adduced before the learned trial Court portraying the factum that despite exercise of due diligence, the fact as proposed to be incorporated in the written statement was not within his knowledge hence could not come to be incorporated therein at the time of its initial institution at the instance of the defendant/petitioner herein before the learned trial Court. The reason as attributed by the learned trial Court for declining leave to the defendant/petitioner herein to incorporate in his written statement the aforesaid amendment was embedded in the factum that with the defendant/petitioner herein while being aware of the nature besides, the character which the suit property partook even at the stage of his initially instituting a written statement to the plaint, as such, with his having knowledge qua the factum aforesaid at the aforesaid stage could not facilitate him, to contend with any force that despite exercise of due diligence on his part, the fact as proposed to be incorporated in the written statement with the leave of the Court was not earlier within his knowledge hence incapacitated him to initially incorporate it in the written statement instituted at his instance, to the plaint. The inference as drawn by the learned trial Court, of the defendant/petitioner herein being equipped with knowledge qua the aforesaid factum at the initial stage emanated from the material existing before the learned trial Court. The tenacity of the said material portraying the factum aforesaid has not been endeavoured to be repulsed by the counsel for the petitioner herein/defendant by adverting to cogent material, which bespeaks otherwise. Necessarily then with knowledge initially inhering in the petitioner herein qua the factum of the suit property bearing the character of its being the self acquired property of the predecessors-in-interest of the plaintiffs, defeats the propagation by the petitioner herein that despite exercise of due diligence initially on his part the factum aforesaid was neither initially garnerable nor hence earlier within his knowledge and only on its discovery subsequent to the institution of the written statement to the plaint at his instance, has necessitated its incorporation in the written statement. As a corollary then the refusal of leave to the petitioner herein/defendant to incorporate the said factum in the written statement was justifiable as well as tenable. In aftermath, the reason as meted out by the learned trial Court in its order refusing leave to the petitioner herein/defendant to incorporate in the written statement the plea of the suit property bearing the character of or its partaking the hue of its being the self acquired property of the predecessors-in-interest of the plaintiffs, especially with the said fact as emanable from the material as adduced before it, being within the knowledge of defendant/petitioner herein at the time of his initially instituting a written statement to the plaint, does not suffer from any legal frailty rather the omission on the part of the defendant/petitioner herein to, despite knowledge initially inhering in his mind qua the aforesaid fact now sought to be incorporated at a belated stage in the written statement, cannot but marshal an inference that it is impermissibly sought to be incorporated at his instance in the written statement. Obviously any deliberate omission on the part of the defendant to now incorporate the aforesaid fact in the written statement cannot rear any ground for him to contend that knowledge qua the fact aforesaid despite exercise of due diligence earlier on his part was not garnerable at his instance, hence, could not be incorporated then at his instance. 3. Obviously any deliberate omission on the part of the defendant to now incorporate the aforesaid fact in the written statement cannot rear any ground for him to contend that knowledge qua the fact aforesaid despite exercise of due diligence earlier on his part was not garnerable at his instance, hence, could not be incorporated then at his instance. 3. Further, the petitioner herein/defendant before the learned trial Court had also sought leave of the Court through the application at hand to incorporate in the written statement the khasra numbers borne by the suit property after the carrying out of consolidation operations in the area where the suit property is located. The learned counsel appearing for the respondents herein/plaintiffs before the learned trial Court has stated at the bar that khasra numbers as ascribed to the suit in the plaint pertain to the preconsolidation era. The learned counsel appearing for the respondents herein further contends that the learned trial Court in its impugned order has given permission to the defendant/petitioner herein to produce before it the apt and germane record pertaining to both the pre-consolidation and post consolidation era, to collate the khasra numbers borne by the suit property both in the pre-consolidation and the post-consolidation era, hence, the petition be dismissed. However, the aforesaid contention of the learned counsel appearing for the respondents herein/plaintiffs before the learned trial Court, stands to be discountenanced on the score that the incorporation with the leave of the Court, in the written statement the aforesaid ascription of khasra numbers borne by the suit property in the post consolidation era, would be leave to incorporate only those facts which are merely clarificatory in nature, besides it would be both an apt and germane material to enable the learned trial Court to render an executable decree. Necessarily then the said fact warrants incorporation in the written statement. Resultantly, permission is accorded by this Court to the petitioner herein to proceed to incorporate the fact aforesaid in the written statement. 5. For the foregoing reason, the instant petition is partly allowed. Consequently, the order impugned before this Court is interfered with to the extent it has refused to grant leave to the petitioner herein/defendant, to incorporate in the written statement the khasra numbers borne by the suit property in the post consolidation era. 5. For the foregoing reason, the instant petition is partly allowed. Consequently, the order impugned before this Court is interfered with to the extent it has refused to grant leave to the petitioner herein/defendant, to incorporate in the written statement the khasra numbers borne by the suit property in the post consolidation era. However, the order impugned before this Court to the extent it has refused to accord leave or permission to the petitioner herein/defendant, to incorporate in the written statement the fact of the suit property bearing the character of self acquired property in the hands of the predecessors-in-interest of the plaintiff, is upheld. In sequel, permission is granted to the petitioner herein to incorporate in the written statement the khasra numbers borne by the suit property in the post consolidation era. All pending application also stand disposed of. The parties are directed to appear before the learned trial Court on 6th October, 2015. The learned trial Court is also directed to complete the trial of the suit within six months from today.