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2016 DIGILAW 586 (HP)

Kamlo Devi v. Cheeno Devi

2016-04-28

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. The defendants in the trial Court have filed this petition with a request to quash and set aside the order dated 2.7.2015 passed by 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. learned Civil Judge (Senior Division), Chamba, H.P. in an application under Order 6 Rule 17 CPC, registered as CMA(Civil Suit No. 90 of 2012) No. 230 of 2015. 2. Respondent No. 1 Smt. Cheeno Devi claims herself to be the legally wedded wife of late Shri Kesaru. Said Shri Kesaru was a Government employee and died in harness. On his death, dispute arises qua payment of retiral benefits because petitioner No. 1 Smt. Kamlo Devi (defendant No. 7 in the trial Court) also claimed herself to be the legally wedded wife of said Shri Kesaru. Therefore, respondent No. 1-plaintiff has filed the suit in the Court below for declaration to the effect that she being the legally wedded wife of late Shri Kesaru is entitled to receive the amount payable towards family pension, death cum retirement gratuity, leave encashment etc. etc. in respect of her late husband and that petitioner No. 1-defendant No. 7 has no right, title and interest to receive the same. The entries showing her being one of the legal heirs of deceased Kesaru, have also been sought to be declared as illegal, null and void and not binding upon the plaintiff and proforma defendants No. 8 to 14. During the course of proceedings in the suit, an application under Order 6 Rule 17 CPC came to be filed for seeking following amendment in the plaint:- “(i) That a new head note “A” is to be amended by adding the following words:- “That the defendants No. 7 in connivance with revenue staff has also got the suit land comprised in Khata Khatoni No. 27/31 to 33 Kitta 53 measuring 53-10-00 Bighas to the extent of 12/109 shares of late Sh. Kesaru attested in her favour along with plaintiff and proforma defendants No. 8 to 14 vide mutation No. 146 dated 25-9-2010 which along with subsequent revenue entries is also illegal, void and in operative upon the right of plaintiff and proforma defendants.” (ii) That the relief clause “A” of the plaint is to be amended by adding following words in between the words “8 to 14” and “May be passed” “the defendant No.7 in connivance with revenue staff has also got the suit land comprised in Khata Khatoni No. 27/31 to 33 Kitta 53 measuring 54-10-00 Bighas to the extent of 12/109 shares of late Sh. Kesaru attested in her favour along with plaintiff and proforma defendants No. 8 to 14 vide mutation No. 146 dated 25-9-2010 which along with subsequent revenue entries is also illegal, void and in operative upon the right of plaintiff and proforma defendants and they may be declared as such.” (iii) New para No. 5-A is to be added as under:- “That the defendant No. 7 in connivance with revenue staff has also got the suit land comprised in Khata Khatoni No. 27/31 to 33 Kitta 53 measuring 54-10-00 Bighas to the extent of 12/109 shares of late Sh. Kesaru attested in her favour along with plaintiff and proforma defendants No. 8 to 14 vide mutation No. 146 dated 25-9-2010 at the back and without the knowledge of the plaintiff which along with subsequent revenue entries is also illegal, void and in operative upon the right of plaintiff and proforma defendants and liable to be declared as such.” 3. The application was resisted and contested by petitioner No. 1-defendant No. 7. Learned trial Court, however, has allowed the same vide order under challenge in this petition with the following observations:- “6. In the present case, the plaintiff has filed a suit for declaration claiming therein retirement benefits of her deceased husband Sh. Kesaru, who was working as Peon in Education Department, under the Service Rules being legally wedded wife of deceased Kesaru and defendant No. 7 having no right, title or interest over the same on the basis of entries showing her to be legal heir of deceased Kesaru, which are also claimed to be wrong, illegal and liable to be declared null and void. 7. 7. By way of proposed amendment, the applicant intends to challenge the mutation No. 146 dated 25-9-2010, allegedly attested and sanctioned in the name of defendant No. 7 in connivance with revenue staff qua the suit land comprised in Khata Khatoni No. 27/31 to 33 Kitta 53, measuring 54-10-00 Bighas to the extent of 12/109 shares of late Sh. Kesaru. It has been claimed that the aforesaid mutation has been got attested and sanctioned by defendant No. 7 in connivance with revenue staff in her absence. In view of such circumstances, I am of the view that the proposed amendment sought by the applicant, shall not change the nature of the suit, which in my view, is supplementary to the original suit and, as such, is necessary to determine the real controversy between the parties. Moreover, the proposed amendment of pleadings is sought by the applicant at earlier stage of the suit as issues are yet to be framed, hence, the same shall not prejudice the case of the defendants, rather, it shall decide the matter in controversy effectively and finally. So far as prejudice, if any, is caused to delay the matter, to the defendants, the same can be compensated in terms of money. Accordingly, I allow the application in the interest of justice, subject to cost of Rs.500/-. After due registration, this application be tagged with main suit. The copy of amended plaint has already been filed. Let, the case be listed for filing writing statement to the amended plaint on 28-8-2015.” 4. The challenge to the impugned order is on the ground, inter alia, that the amendment in the plaint, as allowed by learned trial Court, has completely changed the complex of the entire suit as according to petitioner No. 1-defendant No. 7, in the suit originally filed, the declaration sought was only that she is not the legally wedded wife of deceased Kesaru, hence not entitled to receive the retiral benefits due and payable on his death and now by way of amendment the respondent No. 1-plaintiff has claimed her exclusive right over the property left behind by said Shri Kesaru. Therefore, it has been canvassed that the application should have been dismissed. 5. Therefore, it has been canvassed that the application should have been dismissed. 5. Having gone through the record available at this stage and on analyzing the rival submissions the dispute originally between the parties on both sides i.e. respondent No. 1-plaintiff and petitioner No. 1 defendant No. 7 was qua their entitlement to receive the retiral benefits on the death of Shri Kesaru. The suit seems to be instituted in the month of June, 2012. The amendment in the plaint as allowed pertains to the attestation of the mutation of the property left behind by deceased Kesaru on 25.9.2010. It can reasonably be believed that respondent No.1 plaintiff had the knowledge of attestation of the mutation on the day when she filed the suit. Nothing has come in the application, CMA No. 230 of 2015, filed for seeking amendment in the plaint that respondent No.1-plaintiff was not in the knowledge of attestation of the mutation. The explanation in paras-3 and 4 of the application thereto is that despite exercise of due diligence she could not challenge the mutation at the time of institution of the suit. The nature of the amendment as sought in the plaint and allowed by learned trial Court amply demonstrate that the entire complex of the suit is likely to be changed thereby besides resulting in a formal defect in the plaint i.e. mis-joinder of causes of action. The amendment as allowed likely to change the nature of the suit as a whole is, therefore, not legally permissible. 6. Learned trial Judge, therefore, has erred in law in allowing the application and consequently to take on record the amended plaint. Respondent No.1-plaintif could have seek remedy available to her in accordance with law including by filing a separate suit had she been aggrieved with the attestation of the mutation of the property left behind by deceased Kesaru in the name of petitioner No. 1-defendant No. 7. 7. It is worth mentioning that the mutation of the property has not only been attested and sanctioned in favour of petitioner No. 1 defendant No. 7 but that of plaintiff and proforma defendants No. 8 to 14 also. When the order of mutation is in favour of respondent No. 1 plaintiff also, therefore, it cannot be said that she omitted to challenge the same due to an inadvertent mistake or despite exercise of due diligence. When the order of mutation is in favour of respondent No. 1 plaintiff also, therefore, it cannot be said that she omitted to challenge the same due to an inadvertent mistake or despite exercise of due diligence. Learned trial Court has not appreciated the given facts and circumstances in its right perspective which has resulted in recording wrong findings. The impugned order, therefore, is neither legally nor factually sustainable. Hence, quashed and set-aside. 8. The petition is accordingly allowed and stands disposed of. Pending application(s), if any, also stands dismissed.