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2016 DIGILAW 593 (ALL)

SHYAM DEVI v. THAKURA DEVI

2016-02-19

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the appellant on the point of admission of second appeal as well as on framing of substantial question of law and perused the records. 2. Original Suit No. 1337/1982 (Smt. Thakura Devi v. Lallan and others) was instituted for the cancellation of registered sale-deed dated 20.1.1982, executed on behalf of Bali Raj @ Banshraj (husband of plaintiff Smt. Thakura Devi) in favour of defendant Shyama Devi, on the ground that Banshraj had died on 16.1.1982, but after his death the defendant had presented as impostor in Sub-Registrar’s Office as Banshraj and got executed sale-deed in question on 20.1.1982, regarding property earlier owned by Banshraj and after his death inherited by plaintiff. 3. After affording the opportunity of hearing to the parties, Court of Additional Munsif, Gorakhpur, had dismissed the original suit by its judgement dated 29.1.1996. 4. Aggrieved by the judgement of the trial Court, Civil Appeal No. 88/1986 (Smt. Thakura Devi v. Lallan and others) was preferred by the plaintiff of the original suit. This appeal was heard and allowed by the judgement dated 21.12.1987 of the Ist Additional District Judge, Gorakhpur. By this judgement, the first appellate Court had set aside the judgement dated 29.1.1986 of the trial Court and decreed the original suit, and cancelled the sale-deed in question dated 20.1.1982 with specific finding that the said sale-deed was executed after the death of Banshraj, by any impostor. It was held by first appellate Court that said sale-deed was fraudulently obtained and is liable to be cancelled. 5. It is also admitted fact between the parties that disputed sale-deed was executed on behalf of Banshraj in favour of Smt. Shyama Devi but plaintiffs had initially filed original suit against the three sons of Smt. Shyama Devi, with pleading that since Smt. Shyama Devi is dead, therefore her legal heirs are made as defendants. Then defendants had filed written-statement with averment that Smt. Shyama Devi is alive, and they had also filed the proof of her being alive. Then plaintiffs had moved amendment application for impleading Smt. Shyam Devi as defendant, which was allowed and then original purchaser Smt. Shyama Devi was impleaded as defendant in original suit. 6. Then defendants had filed written-statement with averment that Smt. Shyama Devi is alive, and they had also filed the proof of her being alive. Then plaintiffs had moved amendment application for impleading Smt. Shyam Devi as defendant, which was allowed and then original purchaser Smt. Shyama Devi was impleaded as defendant in original suit. 6. It was also admitted fact that original suit was instituted on 23.10.1982, in which written-statement of original three defendants (sons of Smt. Shyama Devi) had filed written-statement (90-Ka) on 20.1.1985, in which they pleaded about Smt. Shyama Devi being alive. Then impleadment application (100-Ka) was moved by plaintiffs on 7.12.1985, which was allowed by the Court and Smt. Shyama Devi was impleaded as defendant. 7. After dismissal of original suit, the first appeal C.A No. 88/1986 was allowed with the finding as discussed above. Then present appeal was preferred by defendants of original suit, which was admitted for determining two substantial question of law, which are as under : 1. Whether the suit can be dismissed as barred by time if a necessary party is impleaded as defendant after the expiry of limitation for filing the suit ? 2. Whether the Court has jurisdiction to decide the suit on merit even if it is barred by time without recording his satisfaction that the omission to add a new defendant was due to the mistake? 8. Section 21 (i) of Limitation Act, 1963 reads as under. “21. Effect of substituting or adding new plaintiff or defendant.—(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.” 9. The proviso of above-mentioned Section 21(1) Limitation Act makes its explicitly clear that when the Court is satisfied that any new party was not included due to mistake made in good faith, and he was added later on as party on the direction of Court, then such party shall be deemed to have been instituted on any earlier date. The proviso of above-mentioned Section 21(1) Limitation Act makes its explicitly clear that when the Court is satisfied that any new party was not included due to mistake made in good faith, and he was added later on as party on the direction of Court, then such party shall be deemed to have been instituted on any earlier date. In the present case the alleged purchaser of disputed sale-deed Smt. Shyama Devi was considered to be dead at the time of institution of original suit by the plaintiff, but application for her impleadment was moved by the plaintiff only when information was furnished by the defendant about her being alive. It appears that even during proceedings of the case plaintiffs were not assured as to whether said Smt. Shyama Devi was alive or not, as it reflects from the evidence, but since there was averments in documentary proof of her death, so she was rightly impleaded as defendant. During trial of the original suit, the best evedence regarding said act was Smt. Shyama Devi herself who had never appeared in the Court personally. In any case Smt. Shyama Devi was impleaded as party in the original suit on permission of the trial Court. So far the determination of fact as to whether her initial non-impleadment was due to mistake made in good faith or otherwise. In this regard findings of the lower Court, already there, which are in favour of the plaintiffs-respondents. Apart from it, this Court finds that there was no occassion for plaintiff-respondents to institute the suit for cancellation of the sale-deed in question against the three sons of purchaser for unnecessary delaying the trial of his case, if he had believed that Smt. Shyama Devi was alive not only on concurrent finding of lower Court in that regard, there are proof that initially non-impleadment of Smt. Shyama Devi was due to bona fide mistake, but this Court also finds that there was no reason for plaintiff-respondents to institute the suit against the sons of Smt. Shyama Devi, if she had to seek relief against Smt. Shyama Devi. 10. 10. The first appellate Court had cited the case of Jai Jai Ram Manohar Lal v. National Building Meterial Supply, Gurgaon, AIR 1969 SC 1267 , in which the Hon’ble Apex Court has held that : “In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.” 11. In the case of “Sampath Kumar v. Ayyakannu and another, (2002)2 SAR (Civil) 854, the Hon’ble Apex Court has held as under: “An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.” 12. Amendment/impleadment may generally being allowed even at belated such if it does not cause injustice prejudice to other side and such amendment sought must be necessary for purposes of determining in the real controversy between the parties. In the case of “Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006 (63) ALR 335”, the Hon’ble Apex Court has held as under : “16. The object of the rule is that Courts 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 the other side. 17. Order VI, Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. 17. Order VI, Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of the relief claimed. We fail to understand if it is permissible for the appellant to file an independent suit, why the same relief could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties.” 13. On basis of above discussion, it is found that the delay in impleading Smt. Shyama Devi and other necessary parties in original suit was due to bona fide error, therefore, she was rightly permitted to be impleaded in the suit and such impleadment had in effect of causinhg prejudise in justice in any of the defendant-appellant. Therefore, her impleadment relates back to the institution of suit, thereforfe original suit was rightly held not time-barred by the lower Courts. Accordingly the first substantial question of law is decided in favour of plaintiff-respondents and not against defendant-appellants. 14. After filing the written statement in the Trial Court, an amendment application was moved by the plaintiffs for impleading Smt. Shyama Devi as defendant. This was opposed, but after affording an opportunity of hearing, the said application was allowed and Smt. Shyama Devi was impleaded as party in additional written statement. Plea of limitation was raised and in that regard issue No. 7 was framed, which was discussed and decided against the plaintiffs then the appeallant was specifically raised on this point of limitation. This was opposed, but after affording an opportunity of hearing, the said application was allowed and Smt. Shyama Devi was impleaded as party in additional written statement. Plea of limitation was raised and in that regard issue No. 7 was framed, which was discussed and decided against the plaintiffs then the appeallant was specifically raised on this point of limitation. The arguments of both the parties were heard, first appellate Court had specifically discussed the points of limitation of suit on account of belated impleadment of Smt. Shyama Devi, and after considering the arguments of learned counsel for the parties gave it’s specific finding rejected the contention of learned counsel for the defendants-respondents of first appeal. By this finding, the first appellate Court had recorded its satisfaction that original suit was not time-barrred and that finding of first appellate Court appears legal and correct. During discussions of first substantial question of law, this Court has also held that the suit was not time barred. Therefore, on this second substantial question of law, the contention of learned counsel for the appellant in second is found not acceptable and accordingly this second substantial question of law is decided against appeal in favour of respondents-plaintiffs. 15. On the basis of above discussion, I am of the opinion that from the evidences adduced in Trial Court, the plaint case was proved and judgement of first appellate Court suffers from non-illegality, infirmity or irregularity. So both the substantial question of law were decided against the appellant. None of the contention of learned counsel for the appellant are found acceptable, therefore this second appeal is hereby dismissed.