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2016 DIGILAW 1876 (RAJ)

Sita Ram Gupta v. Gopal Lal

2016-12-21

DINESH CHANDRA SOMANI

body2016
JUDGMENT : Dinesh Chandra Somani, J. 1. This writ petition has been filed under Article 227 of the Constitution of India with prayer to quash the order dated 2.8.2016 passed by learned Additional District Judge No. 14, Jaipur Metropolitan, Jaipur passed in Civil Suit No. 153/2013 Gopal Lal v. Sitaram &Anr. 2. Skeletal material facts necessary for disposal of this petition are that plaintiff/non-petitioner No. 1 filed a civil suit for partition and injunction against defendant/petitioner and defendant/non-petitioner No. 2 before the District Judge which was later on transferred to Additional District Judge No. 14, Jaipur Metropolitan, Jaipur and the same is pending there. It was stated in the plaint that plaintiff and defendants are real brothers. Plot No. E-777 situated in front of Pratap Nursery, Awadhpuri Lal Kothi, Jaipur was allotted by U.I.T. in the name of Ramji Lal, read brother of the parties, which was purchased from the earnings of joint Hindu family. After death of Shri Mathura Lal (father of both the parties) family settlement was arrived on 2.2.1984, whereby property purchased in the name of plaintiff was given to Ramji Lal and the plot in question remained joint property of plaintiff and defendants. Defendants filed written statement denying the material averments of the plaint and pleaded that the plot in question was allotted by U.I.T. to Ramji Lal, therefore, he alone was absolute owner of the property in question and Ramji Lal gifted some part of the questioned property by way of separate registered gift deeds in favour of defendant Nos. 1 and 2, as such there is no question of partition and prayed to dismiss the suit of the plaintiff. 3. After filing of written statement, the plaintiff-respondent No. 1 filed an application under Order 6, Rule 17 read with Section 151 of C.P.C. and another application under Order 8, Rule 9 of C.P.C. stating therein that after receiving the written statement, the plaintiff came to know that on 27.7.2012, Ramji Lal executed separate gift deeds in favour of defendants regarding some part of the property in question, for which he was not having legal authority in view of the family settlement dated 2.2.1984, therefore, amendments in the plaint are necessitated. It is further stated that defendants pleaded new, false and misleading facts in their written statement, as such it's denial is required by way of replica/rejoinder and requested for taking the rejoinder annexed with the application, on record. The defendant No. 1 filed reply of the plaintiffs application under Order 8, Rule 9 of C.P.C. stating therein that the plaintiff has not specified in the application as to which facts is new, false and misleading, therefore, permission cannot be given to file rejoinder, because nature of the suit may change, if the rejoinder is taken on record and prayed to dismiss the application filed under Order 8, Rule 9 of C.P.C. 4. After hearing both the sides, learned Trial Court vide it's impugned order dated 2.8.2016, allowed both the applications filed by the plaintiff/non-petitioner No. 1 and allowed amendment as well as granted leave to file rejoinder. Being aggrieved with the same, defendant/petitioner has preferred this petition under Article 227 of the Constitution of India. 5. We gave anxious consideration to the rival submissions of learned Counsel for the parties and perused the material available on record. 6. Learned Counsel for the petitioner submitted that the gift deeds in relation to part of the property in dispute, were executed by Ramji Lal in favour of the defendants on 27.7.2012 and the suit was filed on 6.4.2013, much prior to institution of the suit, as such the amendment sought by the plaintiff cannot be considered as subsequent event after filing of the suit. But learned Trial Court without considering this aspect of the matter and provisions of law, passed the impugned order, deserves to be quashed and set aside. Learned Counsel also submitted that learned Trial Court has committed grave error in not properly appreciating and considering the written statement and has wrongly observed that few new facts have been incorporated in the written statement which requires reply of the plaintiff and the same will not prejudice the defendant. Learned Counsel further submitted that the nature of the suit will change, if the amendment sought by the plaintiff is allowed, because initially the suit was only for the relief of partition and injunction but the learned Trial Court has converted the suit for the relief of declaration also, and thereby changed the nature of the suit without considering this aspect of the matter. 7. 7. Learned Counsel for the plaintiff-respondent No. 1 strongly opposed the arguments of learned Counsel for the petitioner and submitted that the amendment sought by the plaintiff is imperative for proper and effective adjudication of the case. The application for amendments is bona fide and the defendants are not prejudiced by the said amendment. Learned Counsel also submitted that the writ petition does not call for the interference of this Court under Article 227 of the Constitution of India in exercise of superintending powers and prayed to dismiss the petition with cost. 8. It is settled law that while deciding an application for amendment, ordinarily the Court should not refuse bona fide, legitimate, honest and necessary amendments and should not permit malafide and dishonest amendments, because purpose and object of Order 6, Rule 17 of C.P.C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and cannot be allowed under all circumstances but liberal approach should be the general rule and the Court should not adopt hypertechnical approach while deciding such prayers. Normally, the amendments in the pleadings are allowed to avoid multiplicity of litigation. 9. It is not in dispute that the suit was filed on 6.4.2013, written statement was filed on 16.1.2014 and applications under Order 6, Rule 17 and under Order 8, Rule 9 of C.P.C. were filed on 12.4.2014, till then issues were not framed by the learned Trial Court. It is also not in dispute that the property in dispute (E-777) was allotted by U.I.T. to Ramji Lal, a real brother of plaintiff and defendants. The case of the defendant/petitioner is that some part of the disputed property has been gifted by Ramji Lal on 27.7.2012 vide separate gift deeds to defendant Nos. 1 and 2 and the fact of gift deeds was in the knowledge of plaintiff/respondent since beginning, as all parties to the suit are residing in the same property. Whereas, case of plaintiff/respondent is that he came to know about the said gift deeds after receiving copy of the written statement. 1 and 2 and the fact of gift deeds was in the knowledge of plaintiff/respondent since beginning, as all parties to the suit are residing in the same property. Whereas, case of plaintiff/respondent is that he came to know about the said gift deeds after receiving copy of the written statement. As Ramji Lal was not having any relation with the property in question by virtue of family settlement dated 2.2.1984, as such he was not having any right to execute gift deeds for the part of the property in question and therefore, the amendments are required in the plaint. 10. Learned Trial Court after hearing the parties, was of opinion that if the amendment is not allowed, the suit filed by the plaintiff for the relief of partition will become infructuous, for the reason that the property in dispute has been gifted already, prior to institution of the suit. Learned Trial Court was also of opinion that there is no possibility of change in nature of the suit and no prejudice will cause to the defendants, in case the amendment is allowed, because the defendants have an opportunity to file reply of the amended plaint. Learned Trial Court was also of opinion that the said amendment will prevent multiplicity of proceedings and the said amendment is necessary for just decision of the case. Learned Trial Court found that some new facts have been incorporated in the written statement, which needs reply of the plaintiff, therefore, if the rejoinder is taken on record, no prejudice will cause to the defendants and allowed both the applications of plaintiff/respondent No. 1. 11. Considering the totality of the facts and circumstances of the case, the amendment sought by the plaintiff in his plaint is imperative for proper and effective adjudication of the case. Application for amendment appears to be bona fide and no prejudice will cause to the defendant-petitioner in allowing the amendment sought by the plaintiff. However, it may lead to injustice or multiple litigation, in case the amendment is refused. The proposed amendment does not change the nature and character of the case. In the facts and circumstances of the case, the reasons assigned by the learned Trial Court for allowing both the applications filed by the plaintiff/respondent No. 1 are absolutely legal and justified and no interference in the impugned order by this Court, is called for. The proposed amendment does not change the nature and character of the case. In the facts and circumstances of the case, the reasons assigned by the learned Trial Court for allowing both the applications filed by the plaintiff/respondent No. 1 are absolutely legal and justified and no interference in the impugned order by this Court, is called for. This Court cannot convert itself into a Court of appeal while exercising the powers under Article 227 of the Constitution of India. High Court's function while exercising the powers under Article 227 of the Constitution of India is limited, to see that the Subordinate Court functions within the limits of it's authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. 12. In view of the discussions made above, we do not find any error apparent on the face of the record or jurisdictional error in the impugned order dated 2.8.2016, so as to interfere with the same. The writ petition is found to be devoid of substance. Consequently, the writ petition is dismissed.