Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 835 (RAJ)

Ajay Kumar Gupta v. Khadak Singh

2016-06-03

DINESH CHANDRA SOMANI

body2016
JUDGMENT : Dinesh Chandra Somani, J. Defendant-petitioners filed this petition to quash and set aside order dated 28.1.2015 passed by Additional Civil Judge (JD) No. 4, Alwar and consequently to reject the applications of plaintiff-respondent No. 1 filed under Order 6, Rule 17 of C.P.C. 2. Brief Facts :- The plaintiff-respondent No. 1 filed a suit against defendant-petitioners to declare the sale deeds executed by defendant-respondent No. 2 herein on dated 7.5.2008 and 8.5.2008 in favour of the defendant No. 2 and I respectively, to be void and ineffective as against plaintiff-respondent and also for permanent and mandatory injuction. The plaintiff filed the suit with the averment that he has taken the suit premises on rent @ Rs. 30/- (Thirty Rupees) per months from Bihari Lal S/o Bhagwan Sahai on dated 10.1.1968 in the form of Godown in which he is doing business of sacks ("baardaana"). Chiranjee Lal S/o Bhagwan Sahaya and Lakhmi Chand S/o Bhore Lal filed a suit for eviction and recovery of rent against the plaintiff-respondent on dated 10.4.1974. In that suit present plaintiff pleaded that Chiranjee Lal and Lakhmi Chand were not the owner of that rented property, Shri Bihari Lal S/o Bhagwan Sahaya was only the owner of said property from whom the plaintiff herein has taken on rent. The said suit was dismissed in default on 31.3.1994. When the plaintiff came to know about the execution of the sale deeds by defendant-respondent Smt. Janak Gupta in favour of defendant-petitioners, he obtained certified copies of the sale deeds and filed the suit contending that the maps among with the sale deeds are against the site position and on the basis of sale deeds the defendants are causing hindrance in the rights and possession of the plaintiff as a tenant on the basis of said sale deeds. 3. Defendant-petitioners filed their written statement disclosing the fact of sale deeds and as to how Smt. Janak Gupta had go rights to make the sale. Petitioners also pleaded that Bihari Lai, Bhore Lal, Rampat and Chiranjee Lal had a son named Lakhmi Chand. After the death of Bihari Lal and Rampat, Shri Chiranjee Lal succeeded them as their real brother and became owner of the property. That is why relationship of land lord and tenant established between plaintiff and Chranjee Lal. Petitioners also pleaded that Bihari Lai, Bhore Lal, Rampat and Chiranjee Lal had a son named Lakhmi Chand. After the death of Bihari Lal and Rampat, Shri Chiranjee Lal succeeded them as their real brother and became owner of the property. That is why relationship of land lord and tenant established between plaintiff and Chranjee Lal. It was also pleaded that Chiranjee Lal executed a will on dated 25.7.1994 in favour of Smt. Janak Gupta defendant-respondent herein, thus after the death of Chiranjee Lal, Smt. Janak Gupta became owner of the property. It is also pleaded that after execution of sale deeds, through registered notice Smt. Janak Gupta informed the plaintiff-respondent about the sale deeds and to pay the rent in future to the purchasers. Defendant-respondent No. 2 herein also filed her written statement almost with the same averments made by defendant-petitioners. 4. Thereafter the Trial Court framed issues on dated 3.5.2011. At this stage plaintiff-respondent filed an application under Order 6, Rule 17 C.P.C. on dated 28.5.2012 praying therein that after para 10 of the plaint, para 10A may be permitted to be added by way of amendment. The plaintiff stated in the application that he is tenant of Bihari Lal S/o Bhagwan Sahaya and the property does not belong to Chiranjee Lal S/o Bhagwan Sahaya. Adoption deed of Chiranjee Lal is forged and he had no rights to execute a will regarding properly of Bihari Lal. Chiranjee Lal never executed any will in favour of Smt. Janak Gupta. The alleged will is forged that is why the said sale deeds are executed by unauthorised person thus, no rights are created in favour of purchasers. 5. The defendant-petitioners filed reply to the application contending that the plaintiff mentioned in his application that the said will came to his knowledge when the documents were filed in the proceedings of Section 9 of the Rent Control Act and since the documents were photocopy, therefore, certified copies could not be taken by him. Now the original documents were filed by the parties in that suit thus, and on that he could obtain certified copies and filed the application. The said averments of plaintiff are totally false hence denied. It was further contended that the will was very well within the knowledge of plaintiff right from the beginning. Now the original documents were filed by the parties in that suit thus, and on that he could obtain certified copies and filed the application. The said averments of plaintiff are totally false hence denied. It was further contended that the will was very well within the knowledge of plaintiff right from the beginning. By way of this amendment the plaintiff is trying to change the nature of the suit, there in no merit in the application and prayed to reject the application for amendment. 6. Thereafter on 12.7.2012, another application was moved by the plaintiff-respondent seeking amendment in his original application dated 28.5.2012 filed under Order 6, Rule 17 C.P.C. to delete 3rd, 4th, 5th and 6th lines in para 6 of his original application stating therein that mistakenly and due to typing error, wrong facts have been narrated and prayed to delete 3rd, 4th, 5th and 6th lines in para 6 of his amendment application dated 28.5.2012. Defendant-petitioners also filed reply of the subsequent application for amendment contending therein that there is no provision to get amendment in the amendment application itself and submitted that the Plaintiff is trying to take back his admissions made in the original application for amendment and it cannot be termed as a lying error. 7. Learned Trial Court after hearing the parties allowed both the applications for amendment on cost of Rs. 500/- (Five Hundred Rupees) vide impugned order dated 28.1.2015. Being aggrieved with the impugned order, defendant-petitioners approached this Court by way of filing this petition. 8. Heard rival submissions made by Learned Counsels of the parties and perused the record. 9. Learned Counsel for the petitioners submitted the Learned Trial Court has passed the impugned order without considering that the fact of will was in the knowledge of plaintiff or not and also without giving any finding whether the nature of the suit will change or not by way of this amendment. Therefore, the impugned order is per se illegal and liable to the quashed and set aside. Learned Counsel also submitted that the plaintiff filed the suit in the year 2008 regarding the sale deeds registered on 8.5.2008. The very sale deeds which are basis of the suit describes the factum of the will having been executed by Chiranjee Lal in favour of Smt. Janak Gupta on dated 25.7.1994. Learned Counsel also submitted that the plaintiff filed the suit in the year 2008 regarding the sale deeds registered on 8.5.2008. The very sale deeds which are basis of the suit describes the factum of the will having been executed by Chiranjee Lal in favour of Smt. Janak Gupta on dated 25.7.1994. Thus, it is wrong to say that the plaintiff came to know about the alleged will when the documents were filed in the proceedings under Section 9 of the Rent Control Act. Now, by way of this amendment in one way or other, the plaintiff is seeking will to be declared as null and void and forged, thus the nature of the suit changes by allowing this amendment. Learned Counsel has further submitted that instead of first deciding the application for amendment in the amendment application, the Learned Trial Court has first decided the main application itself and thereafter decided the application for amendment in amendment application, which shows that the learned Trial Court passed the impugned order without application of mind. Learned Counsel also submitted the learned Trial Court had not considered the fact that by way of allowing the 2nd application, the plaintiff has been permitted to withdraw the admissions made by him in first application for amendment. As the issues had already been framed and if the impugned order is not quashed, then the new issue would be required to be framed to the effect whether the will executed by Chiranjee Lal is forged or not and this will entirely change the nature of suit. Learned Counsel for the petitioners placed reliance on:- (i) (2012) 2 SCC 300 ). Samuel & Ors. v. Gattu Mahesh & Ors. (ii) (2012) 11 SCC 341 Abdul Rehman & Ors. v. Mohd. Ruldu & Ors. 10. Learned Counsel for the plaintiff-respondent supported the impugned order and submitted that the complete chain of the property has not been mentioned in the sale deeds. More ever, it is also not mentioned that how the property vested in favour of Chiranjee Lal because initially said property vested in favour of Bihari Lal S/o Bhagwan Sahaya. Therefore, the plaintiff-respondent came to know about the forged will when this document was filed in the proceedings under Section 9 of Rent Control Act. More ever, it is also not mentioned that how the property vested in favour of Chiranjee Lal because initially said property vested in favour of Bihari Lal S/o Bhagwan Sahaya. Therefore, the plaintiff-respondent came to know about the forged will when this document was filed in the proceedings under Section 9 of Rent Control Act. Learned Counsel also submitted that by virtue of this amendment, the nature of suit does not change because the plaintiff did not seek any amendment in the relief prayed for in the suit. Learned counsel further submitted that both the applications for amendment relates to each other and the 2nd application for amendment is part of first application for amendment, therefore, the learned Trial Court has rightly allowed both the applications vide impugned order because the 2nd application was to rectify the typing mistakes occurred in the first application for amendment. Learned Counsel also submitted that scope of Article 227 of the Constitution is very limited and the present case is not a fit case to exercise the jurisdiction under Article 227 of the Constitution and prayed to dismiss the petition being devoid of merit. Learned Counsel place reliance on:- (i) (2012) 5 SCC 337 Rameshkumar Agarwal v. Rajmala Exports Private Ltd. & Ors. (ii) (2011) 12 SCC 268 State of Madhya Pradesh v. Union of India & Anr. 11. Before considering the factual details and the material placed by the parties, it is useful to refer Order 6, Rule 17 C.P.C., which is as under:- " 17. Amendment of Pleading:- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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." 12. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceedings for the purpose of determining the real question in controversy between them. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceedings for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that :vent, the Court has to arrive at a conclusion that in spite of due diligence, the tarty could not have raised the matter before the commencement of trial. 13. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. 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. Hon'ble the Apex Court and this Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation. 14. The plaintiff-respondent's case is that complete chain of the property has not been mentioned in the sale deeds as to how the said property vested in favour of Shri Chiranjee Lal. He came to know about the forged will when it was filed in the proceedings under Section 9 of Rajasthan Rent Control Act. 14. The plaintiff-respondent's case is that complete chain of the property has not been mentioned in the sale deeds as to how the said property vested in favour of Shri Chiranjee Lal. He came to know about the forged will when it was filed in the proceedings under Section 9 of Rajasthan Rent Control Act. The case of defendant-petitioners is that the factum of will having been executed by Chiranjee Lal in favour of Smt. Janak Gupta is mentioned in the sale deeds which are the basis of the suit of plaintiff-respondent thus, it is wrong to say that he came to know about the will when it was filed in the proceeding under Section 9 of the Rent Control Act. From perusal of record it reveals that an application under Section 9 of the Rajasthan Rent Control Act was filed against the plaintiff-respondent for eviction. Section 15 of the Rajasthan Rent Control Act, 2001 prescribes that the petition shall be accompanied with affidavits and documents, if any upon which landlord or person claiming possession wants to rely. It is not the case of the defendant-petitioners that the will was also annexed to the petition filed by them before Rent Tribunal and a copy of the will was also served upon the plaintiff-respondent, whereas plaintiff-respondent has come with specific statement that the said property initially vested in favour of Shri Bihari Lal S/o Bhagwan Sahaya and he came to know about the said will when it was filed in the proceedings under Section 9 of the Kent Control Act in the stage of evidence. Thereafter, he obtained certified copy of the will and submitted the application for amendment under Order 6, Rule 17 C.P.C. therefore the case of plaintiff-respondent is covered by proviso to Rule 17 Order 6 of C.P.C. The application for amendment is supported by affidavit. Petitioners nowhere stated in their reply to the amendment application that copy of the will was given to the plaintiff-respondent along with copy of the application under Section 9 of the Rajasthan Rent Control Act. Petitioners nowhere stated in their reply to the amendment application that copy of the will was given to the plaintiff-respondent along with copy of the application under Section 9 of the Rajasthan Rent Control Act. The petitioners did not even produce the copy of list of documents filed with the application under Section 9 of the Rent Control Act thus, the contention of plaintiff-respondent cannot be disbelieved at this stage that he came to know about the said will only when petitioners filed that same before Rent Tribunal at the stage of evidence and thereafter, he obtained certified copy thereof and submitted application for amendment. In view of above, the case of plaintiff-respondent is covered by proviso of Order C Rule 17 C.P.C: because in spite of due diligence, the plaintiff-respondent could not raise the matter before commencement of the trial. 15. From perusal of record and submissions of learned Counsels of both the parties, it reveals that the plaintiff-respondent had taken the said property on rent from Bihari Lal S/o Bhagwan Sahaya on dated 10.1.1968 and since then he is in possession on the rented property. It also reveals that Chiranjee Lal and Lakhmi Chand filed a suit for eviction and recovery of rent against plaintiff-respondent lit that suit the plaintiff-respondent filed written statement (Annexure-R 1/2) pleading that Chiranjee Lal and Lakhmi Chand did not produce any proof regarding their title on suit property. The said suit was dismissed in default of 31.3.1994. In the year 2008 plaintiff-respondent filed present suit to declare the-sale deeds executed by respondent No. 2 in favour of the petitioners to be void and ineffective as against rights and interest of plaintiff-respondent in the suit property. From perusal of alleged sale deeds it appears that respondent No. 2 obtained the property from Chiranjee Lal by virtue of the will executed by him in favour of the respondent No. 2 but how the property vested in Chiranjee Lal is not mentioned in the sale deeds. The alleged will is not a registered document. The plaintiff-respondent filed the application for amendment in the plaint to bring the fact of alleged will on record and did not sought any amendment in the prayer clause of the plaint. Thus, in our humble opinion, nature of the suit does not change by allowing the amendment sought by plaintiff-respondent vide his application dated 28.5.2012. 16. In Abdul Rehman & Anr. Thus, in our humble opinion, nature of the suit does not change by allowing the amendment sought by plaintiff-respondent vide his application dated 28.5.2012. 16. In Abdul Rehman & Anr. v. Mohd. Ruldu & Ors. (supra), Hon'ble the Apex Court observed that the proviso to Rule 17 Order 6 of C.F.C., to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence it could not have been sought earlier. 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. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation. 17. As discussed above, in spite of due diligence, the plaintiff-respondent could not sought the amendment earlier. Therefore the law laid down by Hon'ble the Apex Court in this case does not help the petitioner. 18. In J. Samuel & Ors. v. Gattu Mahesh & Ors. (supra). The plaintiff filed the suit for specific performance of contract for sale of property. The plaintiff filed an application for amendment of plaint seeking amendment to incorporate specific pleading in compliance of the Section 16(c) of the Specific Relief Act and Form 47 of. Appendix A of the C.P.C. on the ground that the same was missed due to typographical error. The Trial Court dismissed the application for amendment. Against which revision petition was filed. Hon'ble High Court allowed the amendment. Being dissatisfied with the order of Hon'ble High Court, appeal was preferred in Hon'ble the Apex Court by way of S.L.P. Hon'ble the Apex Court held that omission of specific plea mandatorily required by statute to be stated in plaint amounts to negligence and lack of due diligence thus, amendment sought to incorporate such a plea on ground that it was missed due to typographical mistake, cannot be accepted. In our humble view, the law laid down by Hon'ble the Apex Court in this case, does not help the petitioners herein as facts and circumstances of the case differs. 19. In Rameshkumar Agarwal & Anr. v. Rajendra Exports Private Ltd. & Ors. (supra), Hon'ble the Apex Court has held that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6, Rule 17 of the Code 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 under all circumstances, but the Courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigation's. 20. In State of Madhya Pradesh v. Union of India & Anr. (supra), Hon'ble the Apex Court has held the though Courts have ample power to allow amendment of plaint but said power should be exercised in interest of justice and for determination of real question in controversy between parties. Either party can alter or amend his pleadings in such manner and on such terms as may be just. However, amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule, particularly in cases where other side can be compensated with costs. Normally, amendments are allowed in pleadings to avoid multiplicity of litigation's. Hon'ble the Apex Court further held that where application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. 21. In view of discussions made above, it reveals that the plaintiff-respondent came to know about the factum of will only when it was filed by defendant-petitioners at the stage of evidence in the proceedings under Section 9 of the Rent Control Act, 2001 and thereafter he obtained certified copy thereof and filed application for amendment. 21. In view of discussions made above, it reveals that the plaintiff-respondent came to know about the factum of will only when it was filed by defendant-petitioners at the stage of evidence in the proceedings under Section 9 of the Rent Control Act, 2001 and thereafter he obtained certified copy thereof and filed application for amendment. In this way the plaintiff-respondent could not sought the amendment before commencements of the trial thus, the present case falls under the proviso of Order 6, Rule 17 of C.P.C. 22. To my mind, the amendment sought by the plaintiff-respondent vide application dated 28.5.2012 is required for just decision of the case in order to shorten the litigation and to sub-serve the ends of justice. No prejudice will cause to the defendant-petitioners, if the amendment sought vide application dated 28.5.2012 (Annexure-5) is allowed. 23. Now we consider the 2nd application dated 12.7.2012 (Annexure-7) for amendment in application for amendment dated 28.5.2012. The case of plaintiff-respondent is that mistakenly and due to typing error wrong facts have been mentioned in 3rd, 4th, 5th and 6th line in para 6 of first application for amendment (Annexure-5) vide 2nd application for amendment (Annexure-7), the plaintiff-respondent prayed to delete 3rd, 4th, 5th and 6th line in para 6 of the first application for amendment dated 28.5.2012 (Annexure-5). Petitioner's submission is that by way of this deletion the plaintiff is trying to withdraw the admissions made by him in the first application dated 28.5.2012, for which he cannot be permitted but learned Trial Court has not considered this aspect and without examining the effect of such deletion, has allowed the amendment, Defendant-petitioners strongly opposed the 2nd application for amendment. Provisions of Order 6, Rule 17 C.P.C. does not allow a party to withdraw the admissions made by him on an earlier occasion therefore, to my mind, learned Trial Court has committed error in allowing 2nd application for amendment dated 12.7.2012. If the order of the learned Trial Court regarding 2nd application of amendment dated 12.7.2012 is allowed to stand then the valuable rights of the defendant-petitioners may be prejudiced. In the light of principles laid down by Hon'ble the Apex Court and the discussions made above, the impugned order to this extent deserves to be set aside in exercise of powers under Article 227 of the Constitution. 24. In the light of principles laid down by Hon'ble the Apex Court and the discussions made above, the impugned order to this extent deserves to be set aside in exercise of powers under Article 227 of the Constitution. 24. Consequently, we dispose of the instant petition upholding the impugned order of Learned Trial Court as regard the application dated 28.5.2012 for amendment in the plaint is concerned and we set aside the impugned order as regard the application dated 12.7.2012 for amendment in the amendment application is concerned. Terms of impugned order regarding cost shall remain unchanged. Petition allowed.