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2015 DIGILAW 826 (HP)

Rajeev Sood v. Devinder Sain Chopra

2015-07-06

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 22.08.2009 passed by the learned District Judge (Forest), Shimla, whereby the application for amendment of the written statement preferred by the petitioner came to be dismissed. 2. The dispute relates to building No. 8, Middle Bazar, Shimla, over which the respondents claim ownership, whereas, petitioner claims to have become owner by way of adverse possession. 3. As per the petitioner, the necessity for amendment arose because of the fact that the case of the plaintiffs was based upon mutation attested in their favour vide order dated 12.07.1977 on the strength of alleged sale certificate issued under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954. However, the said mutation was not only reviewed, but was cancelled by the competent authority which fact came to the knowledge of the petitioner only on 24.07.2009 when he applied for the copy of the revenue record (jamabandi). 4. This application was opposed by the plaintiffs/respondents on the ground that no such subsequent event has taken place with regard to suit property which had been acquired by them on the basis of the sale certificate. It was further contended that the revenue authorities had no jurisdiction or authority to cancel the sale made by the Rehabilitation Department. 5. The learned appellate Court dismissed the application only on the ground that after amendment of Rule 17 of Order 6 CPC, the parties were required to prove that inspite of due diligence, the party could not raise the matter before the commencement of the trial and accordingly dismissed the application. I have heard the learned counsel for the parties and have gone through the records of the case. 6. At the outset, it may be observed that even the learned counsel for the respondents has fairly conceded that the order passed by the Court below dismissing the application only on the ground of due diligence cannot be supported in law. He has fairly submitted that the amendment brought about the Code of Civil Procedure by Amendment Act 22 of 2002 with effect from 01.07.2002, more particularly, provisions of Rule 17 of Order 6 CPC would only operate prospectively and not to the proceedings already instituted. 7. He has fairly submitted that the amendment brought about the Code of Civil Procedure by Amendment Act 22 of 2002 with effect from 01.07.2002, more particularly, provisions of Rule 17 of Order 6 CPC would only operate prospectively and not to the proceedings already instituted. 7. It is also not in dispute that this legal position has already been set at rest by the judgment of the Hon’ble Supreme Court in State Bank of Hyderabad versus Town Municipal Council (2007) 1 SCC 765 wherein it was categorically held that by reason of Section 16(2) (b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein would only apply in respect of the suits which were filed after 01.07.2002. As the suit in the present case has admittedly been filed in the year 1982, the proviso appended to Order 6 Rule 17 CPC as applied by the learned District Judge does not apply to the present proceedings. 8. Having conceded to a part of the impugned order, the learned Senior Counsel for the respondents has raised preliminary objection regarding the maintainability of this petition which has been filed under Article 227 of the Constitution of India. It is contended that once the specific remedy of Revision under the provision of 115 CPC has been provided for, then recourse to Article 227 of the Constitution of India cannot be permitted. 9. This objection according to the learned Senior Counsel for the petitioner will now have to be decided bearing in mind the recent judgment of three Judges of the Hon’ble Supreme Court on this issue. 10. The earlier view of the Hon’ble Supreme Court in Surya Dev Rai versus Ram Chander Rai and others (2003) 6 SCC 675 that an order of the Civil Court was amenable to writ jurisdiction under Article 226 of the Constitution of India was doubted in Radhey Shyam and another versus Chhabi Nath and others (2009) 5 SCC 616 and this is how the matter came up before the Bench of Hon’ble three Judges in Radhey Shyam and another versus Chhabi Nath and others (2015) 5 SCC 423 and it was held:- “25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above. 26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh vs. Amarnath AIR 1954 SC 215 , Ouseph Mathai vs. M. Abdul Khadir (2002) 1 SCC 319 , Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal (2013) 9 SCC 374 . In Shalini Shyam Shetty, this Court observed : (SCC p.352, paras 64-67) "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly." (emphasis added) 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. 28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail v. Manoj Kumar (2004) 4 SCC 785 , Mahendra Saree Emporium (2) v. G.V. Srinivasa Murthy (2005) 1 SCC 481 and Salem Advocate Bar Assn.(2) v. Union of India (2005) 6 SCC 344 and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent.” 11. It would be seen that in Radhey Shyam’s case (supra), the Court was primarily concerned with the scope of power under Article 226 of the Constitution of India. 12. Insofar as the scope of power under Article 227 of Constitution of India is concerned, the Court has not doubted the correctness of the view taken by another Bench of Hon’ble three Judges in Shail versus Manoj Kumar and others (2004) 4 SCC 785 . The Hon’ble Supreme Court therein held that the High Court in exercise of the powers under Article 227 of the Constitution of India not only has the powers to make directions by way of guiding inferior Court or Tribunal as to the manner in which it would proceed hence, but also has jurisdiction itself to pass such a decision or direction as the inferior Court or Tribunal should have made. But, then it was held that the powers under Article 227 of the Constitution of India are to be exercised sparingly and with care and caution. The Hon’ble Supreme Court observed as follows:- “3. In Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. If convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.” 13. Therefore, even in Shail’s case (supra), the Hon’ble Supreme Court for deciding the scope of Article 227 only followed what had been laid down in Surya Dev Rai’s case (supra). 14. Insofar as the power of superintendence conferred on the High Court under Article 227 is concerned, the same is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. 15. The supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. But then the exercise of supervisory jurisdiction is not available to correct mere error of fact or law unless the following requirements are satisfied:- i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and ii) a grave injustice or gross failure of justice has occasioned thereby. 16. 16. Supervisory jurisdiction may be refused to be exercised wherein an alternative efficacious remedy by way of appeal or revision is available to the person. But, supervisory jurisdiction is to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest gross failure of justice or grave injustice should occasion. Under Article 227 of the Constitution of India orders of both Civil and Criminal Court can be examined only in very exceptional case when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and law. 17. Reverting to the facts of the case, it would be noticed that the main ground for refusing the amendment was the erroneous interpretation and thereafter the applicability of the amended provisions of Rule 17 of Order 6 which concededly were not applicable to the facts of the case. Therefore, in such circumstances, it cannot probably be disputed that this petition under Article 227 of the Constitution of India is definitely maintainable. The preliminary objection raised by the respondents is, therefore, rejected. 18. Now coming to the merits of the petition, it can be safely concluded that the legal position regarding amendment of written statement is somewhat settled. The principles culled out from various judicial decisions regarding amendment of written statement are enumerated herein under:- I. The object of Order VI Rule 17 CPC is that the court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to either side. II. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in larger interest of doing full and complete justice to the parties before the court. Thus, the court should always give leave to amend pleadings of a party unless it is satisfied that the party applying was acting malafide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. III. Amendment sought after substantial delay could be allowed even if barred by limitation if that sub-serves the cause of justice and avoids further litigation. IV. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. III. Amendment sought after substantial delay could be allowed even if barred by limitation if that sub-serves the cause of justice and avoids further litigation. IV. While dealing with amendment applications the Courts should not adopt a hyper technical approach. Liberal approach should be general rule particularly in cases where the other party can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. V. Amendments should be refused only where the other party cannot be placed in the same position before the amendment but the amendment would cause him an injury which could not be compensated in costs. VI. A prayer for amendment of the plaint and a prayer of written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. The aforesaid principle does not apply to the amendment of the written statement. VII. In case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice is far less in the former than in the latter. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. VIII. Inconsistent and alternative pleas can be allowed to be taken in a written statement provided they are not destructive of each other. IX. Mere delay in making an amendment application itself is not enough to refuse amendment particularly when the delay does not cause serious prejudice to the other party and can be compensated in terms of money. X. It would not be open to a party to wriggle out of an admission made by him by seeking amendment of the written statement as admission is a material piece of evidence which would be in favor of a person who would be entitled to take advantage of that admission. X. It would not be open to a party to wriggle out of an admission made by him by seeking amendment of the written statement as admission is a material piece of evidence which would be in favor of a person who would be entitled to take advantage of that admission. However, the admission can be explained and it would be permissible to add rider and/or proviso thereto while keeping the admission intact. (The afore-noted principles have been culled out by this Court from the decisions of the Hon’ble Supreme Court reported in Pirgonda Hongonda Patil versus Kalgonda Shidgonda Patil and others AIR 1957 SC 363 , M/s. Modi Spinning & Weaving Mills Co. Ltd. and another versus M/s. Ladha Ram & Co. (1976) 4 SCC 320 , B.K. Narayana Pillai versus Parameswaran Pillai and another (2000) 1 SCC 712 , Pankaja and another versus Yellappa(D) by L.R.s and others AIR 2004 SC 4102 , Sajjan Kumar versus Ram Kishan (2005) 13 SCC 89 , Rajesh Kumar Aggarwal & Ors. versus K.K. Modi & Ors. AIR 2006 SC 1647 , Usha Balashaheb Swami and others versus Kiran Appaso Swami and others (2007) 5 SCC 602 , North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (dead) by LRS. (2008) 8 SCC 511 , Peethani Suryanarayana and others versus Repaka Venkata Ramana Kishore and others (2009) 11 SCC 308 and Abdul Rehman and another versus Mohd. Ruldu and others (2012) 11 SCC 341 ). 19. In the application filed for amendment, the petitioner had sought to add Para 8 and 9 in the originally existing Para 7 of the preliminary objections to the following effect:- “8. That the suit of the plaintiffs is neither maintainable nor competent in its present form. 9. The plaintiffs are guilty of suppression veris in much as they have not disclosed the true fact about replacement of its name from the ownership of suit property in the name of the Department of Custodian, and have thus tried to play fraud on the Hon’ble Court by suppressing the said fact.” And similarly in Para 2 of the written statement on merits, the following paragraph was intended to be incorporated. “That it is worthwhile to submit here that during the pendency of the present suit, the mutation allegedly sanctioned in favour of the plaintiffs on 12-7-1977, has been reviewed and rejected by the competent revenue officer vide order dated 29-12-1986. (Copy of Register Intakal is filed herewith). It is further submitted that vide order dated 22-3-2001, in case No.53/2001 passed by the Assistant Collector, Settlement, during the settlement operation, the name of the plaintiff has been ordered to be replaced in the revenue records by the name of Department of Custodian, in the column of ownership. To the knowledge of the replying defendant, the said orders have been passed by the revenue authorities, due to illegality/infirmity in the sale allegedly made in favour of the plaintiffs. The suit property is now recorded in the name of the Department of Custodian, and the possession has been shown to be that of the tenants. The said fact is evident from the Latest Jamabandi for the year 2004-2005, a copy of which is filed with the written statement. Thus, the plaintiffs are not the owners of the suit property and thus have no locus to file and maintain the present suit.” 20. In reply to this application, the respondents filed the following reply:- “5. That no subsequent development has taken place, due to which amendment in the written statement has become necessary or which goes to the root of the matter or which may have vital bearing, on the final out come of the present lis. No amendment deserves to be allowed. That it is denied that the plaintiffs are not the owner of the suit property.” 21. Now, in case the proposed amendment is seen, the petitioner has clearly stated that the mutation that had allegedly been sanctioned earlier in favour of the plaintiffs (respondents herein) on 12.07.1977 had been reviewed and rejected by the competent Revenue Officer vide order dated 29.12.1986. It was further submitted that vide order dated 22.03.2001 in Case No.53/2001 the Assistant Collector, Settlement, had ordered the name of the plaintiff to be replaced by the name of Department of Custodian in the column of ownership in the revenue record. 22. The denial to such averments is too general and not even specific and, therefore, I see no reason why the amendment should have been refused. 22. The denial to such averments is too general and not even specific and, therefore, I see no reason why the amendment should have been refused. It may also be noticed that in the suit filed by the plaintiffs/respondents, the Department of Custodian is not even a party. Though, as per the proposed amendment, it is the department, who after review of the mutation is the owner of the property. These are all matters which are required to be proved by leading clear, cogent and convincing evidence. But, then in absence of the real owner, the plaintiffs/respondents cannot be permitted to oppose the application only because the petitioner has now questioned their title, because in case the plaintiffs themselves do not possess or lack the title, then even the suit itself is not maintainable. 23. The contents of the proposed amendment which have not been categorically and specifically denied have cast a cloud upon the title of the plaintiffs. Therefore, the proposed amendment is necessary for determining the real controversy between the parties as this would be in larger interest of doing full and complete justice to the parties before the Court. 24. As a consequence to the aforesaid findings, there is merit in this petition and the same is accordingly allowed. The impugned order dated 22.08.2009 is set aside and the amendment as proposed is allowed. The pending application, if any, also stands disposed of. 25. As the suit has been instituted in the year 1982, the learned appellate Court shall make all endeavours to decide the appeal as expeditiously as possible and in no event later than 31st December, 2015. The parties through their counsel are directed to appear before the appellate Court on 15.07.2015.