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2016 DIGILAW 235 (RAJ)

Shishpal v. Uma Devi @ Umawati

2016-02-11

ARUN BHANSALI

body2016
ORDER : This writ petition has been filed by the petitioner aggrieved against the order dated 17.1.2015 passed by the Additional District Judge No.2, Nohar, District Hanumangarh, whereby the application filed by the respondent-plaintiff under Order VI, Rule 16 CPC and consequential application under Order XIV, Rule 5 CPC have been allowed. The plaintiff filed a suit for declaration against the petitioner-defendant for declaration that the plaintiff was not adopted son of Sukh Ram @ Sukha s/o Shri Bhoja Ram. It was inter-alia claimed in the plaint that Sukha Ram @ Sukha was unmarried and had no issue. However, on 25.7.2009 1/3rd share of Sukha in agricultural land was mutated in the name of defendant – Shishpal as adopted son of Sukha Ram. The plaintiff had also filed application for mutation based on will, however, the land was mutated in the name of Shishpal -defendant. On enquiry, it was revealed that Sukha Ram had executed a adoption deed on 17.6.1980, which was registered on 19.6.1980. Various pleas were raised questioning the genuineness / validity of the adoption deed dated 17.6.1980. The plaintiff contended that she along with defendants No.2 to 5 are real brother and sister of Sukha Ram and are his natural successors, but as Sukha Ram before his death on 21.5.2009 had executed a will dated 18.4.2009 in favour of the plaintiff, she alone was entitled to succeed to the properties of Sukha Ram. Relief was sought in the suit for declaration that the defendant-Shishpal was not adopted son of late Shri Sukha Ram and the adoption deed dated 17.6.1980 /19.6.1980 was null and void. Injunction was sought against interference in plaintiff's possession. A written statement was filed by the defendant-Shishpal disputing the contentions raised by the plaintiff and challenging the validity of the will dated 18.4.2009 said to have been executed in favour of the plaintiff. The trial court inter-alia framed Issue No.3 as to whether Sukh Ram had executed will dated 18.4.2009 in plaintiff's favour and its effect on the suit. Thereafter, the evidence of the parties was recorded and matter was fixed for final hearing, then on 8.12.2014, an application was filed by counsel for the plaintiff under Order VI, Rule 16 CPC r/w Section 151 CPC inter-alia indicating that the suit was filed seeking declaration against the adoption of defendant No.1 as adopted son of Sukh Ram. Thereafter, the evidence of the parties was recorded and matter was fixed for final hearing, then on 8.12.2014, an application was filed by counsel for the plaintiff under Order VI, Rule 16 CPC r/w Section 151 CPC inter-alia indicating that the suit was filed seeking declaration against the adoption of defendant No.1 as adopted son of Sukh Ram. However, in para 3 of the plaint, an averment has been made regarding execution of will by Sukh Ram in favour of the plaintiff, however, it is not necessary to determine the validity of the will in the suit and therefore, the contents pertaining to the said aspect be deleted as unnecessary and Issue no.3 be deleted. A reply to the application was filed by the defendant No.1 challenging the maintainability of the application on the ground that the application has been filed at a belated stage, whereas the entire trial was conducted based on the averments as contained in the plaint. After filing of the reply, another application dated 14.1.2015 under Order XIV, Rule 5 CPC was filed by the petitioner-plaintiff seeking deletion of Issue No.3. After hearing the parties, the trial court came to the conclusion that if the applications were allowed, the same would not change the nature of the suit as deed of adoption was mainly challenged in the suit and in the interest of justice, it was necessary to accept the application; further as the suit has not been filed based on will, but on account of mutation based on adoption, the cause of action would also not change and on account of delay, the Court imposed a cost of Rs.1500/-and allowed both the applications. It is submitted by learned counsel for the petitioner that the trial court was not justified in accepting the application filed by the respondents, inasmuch as, the suit was filed specifically raising issues about will having being executed by deceased Sukh Ram, the petitioner questioned the validity of the said will and based on the said challenge, issue was framed by the trial court, evidence was led by the parties over a period of about 5 years and when the matter was fixed for final hearing, the application has been filed, which could not have been entertained by the trial court and therefore, the order impugned deserves to be set-aside. It is also submitted that the power under Order VI, Rule 16 CPC has to be sparingly exercised and the trial court has failed to record any reason in this regard and therefore, the order impugned deserves to be set-aside. Reliance was placed on Abdul Razak v. Mangesh Raja Ram Vagle : 2010 DNJ (SC) 89; Sathi Vijay Kumar v. Tota Singh : (2006) 13 SCC 353 and Nirbhay Singh v. Sanjay Singh : 2010(3) DNJ (Raj.) 1323. Learned counsel for the respondent supported the order impugned. It was submitted that from perusal of the plaint including the relief claimed therein reveals that the plaintiff had questioned the validity of the adoption deed executed in favour of defendant-Shishpal and the reference to will executed in her favour was, in fact, unnecessary as the same had no implication as far as validity of the adoption deed was concerned. Further so far as the natural heir of deceased Sukh Ram are concerned, all are parties to the suit. It was further submitted that in fact, the suit filed by defendant-Shishpal seeking cancellation of the will executed in favour of the plaintiff and proceedings initiated by the plaintiff seeking probate of the will are already pending and on that count also, the present issue in the suit was unnecessary and therefore, it cannot be said that the trial court committed any error in exercising its jurisdiction and the order impugned therefore, does not call for any interference. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The provision of Order VI, Rule 16 CPC reads as under:- “16. Striking out pleadings. -The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading – (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court.” It would also be relevant to notice at this stage provisions of Order VI, Rule 17 CPC, which reads as under :- “17. Amendment of pleadings. Amendment of pleadings. -The Court may at any stage of 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.” A perusal of both the provisions would reveal that while provision of Order VI, Rule 16 CPC deals with amendments which a party desires to be made in his opponents' pleadings, provisions of Order VI, Rule 17 CPC deals with parties' own pleadings. The application under Rule 16 may be filed for amending opponent's pleadings, if the matter in the pleadings are unnecessary scandalous, frivolous or vexatious etc. Apart from this Rule 16, there is no provision in the CPC according to which the pleadings of a party can be amended against his will. The case in hand presents a unique situation, where the provision of Order VI, Rule 16 CPC have been invoked by the plaintiff herself seeking striking out portions from her plaint, terming the same as unnecessary. As noticed herein-before, the provision under Order VI, Rule 16 CPC can only be invoked for seeking striking out of / amendment in the pleadings of the opponents and therefore, for the purpose of seeking amendment in one's own pleadings, the application under Order VI, Rule 16 CPC is not maintainable. The said aspect is further fortified from the express language of Order VI, Rule 17 CPC, which provides that court may at any stage of the proceedings allow either party to alter or amend 'his pleadings' and therefore, for the purpose of amending one's own pleadings, a party has to invoke the provisions of Order VI, Rule 17 CPC. The said aspect is further fortified from the express language of Order VI, Rule 17 CPC, which provides that court may at any stage of the proceedings allow either party to alter or amend 'his pleadings' and therefore, for the purpose of amending one's own pleadings, a party has to invoke the provisions of Order VI, Rule 17 CPC. However, it appears that the plaintiff-respondent with a view to get over the rigour of proviso to Order VI, Rule 17 CPC, which requires a party to show that in spite of due diligence, the party could not have raised the matter before the commencement of trial and the court is required to record the finding in this regard before permitting any amendment, the present course appears to have been adopted by the plaintiff. It is well settled that when a specific provision exists in the CPC, neither inapplicable provision nor powers under Section 151 CPC can be invoked by a party. In the present case, it is apparent that the respondent-plaintiff only with a view to get over the provisions of proviso to Order VI, Rule 17 CPC has invoked inapplicable provisions of Order VI, Rule 17 CPC and therefore, the application filed by the defendant-respondent could not have been entertained by the trial court for the purpose of granting relief. However, though the application filed by the plaintiff was not maintainable, the power of Order VI, Rule 16 CPC is open to be exercised by the court suo moto as well, which is apparent from the language of Order VI, Rule 16 CPC, which enables a court to strike out pleadings at any stage of the proceedings. A bare look at the frame of the suit, its title, pleadings and relief claimed clearly reveals that the suit essentially pertained to seeking a declaration that defendant-Shishpal was not the adopted son of late Shri Sukh Ram and essentially for the purpose of indicating as to why the suit was filed by the plaintiff alone, the averments were made in the plaint that a will dated 18.4.1999 has been executed in favour of the plaintiff. The aspect of will having been executed in favour of the plaintiff was on its face unnecessary for determination of validity of adoption of defendant No.1, which is also apparent from the language of Issue No.3, which was framed in this regard, wherein it was indicated as to whether the will was executed by Sukh Ram in favour of the plaintiff and 'its effect on the suit'. The fact as to whether a will has been executed or not would have no implication as even otherwise the plaintiff is a natural heir of deceased Sukh Ram and other natural heirs of deceased Sukh Ram are also party to the suit. The further aspect, which is not denied and which is also relevant, is the pendency of the proceedings filed by the plaintiff seeking probate of the will and the suit filed by the defendant No.1 seeking cancellation of will which proceedings / suit would decide the fate of the will. In the above circumstances, the power exercised by the trial court, though at the instance of the plaintiff based on a non-maintainable application, but under a provision which gives a suo moto power to the court to strike out pleadings, cannot be faulted. So far as the judgments cited by learned counsel for the petitioner are concerned, there is no dispute on the principles laid down in the said judgments that the power under Order VI, Rule 16 CPC has to be exercised by the Court with caution and sparingly, however, as it has been found herein-before that the struck out pleadings in fact were unnecessary, the said judgments have no application to the facts of the present case. In view of the above discussion, though it is held that the application filed by the respondent was not maintainable, the exercise of power by the trial court under Order VI, Rule 16 CPC is upheld. Consequently, there is no substance in the writ petition, the same is, therefore, dismissed.