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2016 DIGILAW 913 (HP)

Ram Rattan v. Ashwani Kumar

2016-05-25

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition has been filed against Order dated 21.8.2015 rendered by the learned District Judge, Solan, HP in Application No. S/6 of 2015 in Case No. 60-S/13 of 2013. 2. “Key facts" necessary for the adjudication of the present petition are that the petitioner-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake), filed a suit No. 48-K/1 of 2003 before the learned Civil Judge (Junior Division), Kandaghat, District Solan, HP for declaration to the effect that he be declared owner in joint possession of the suit land comprised in Khata/Khatauni No. 5/6, Kita 9, measuring 108-10 Bigha situate in Village Koon, H.B. No. 38, Pargana Bharoli, Tehsil Kandaghat, District Solan, HP as per Jamabandi for the year 2001-02 and half share in respect of land comprised in Khata/Khatauni No. 11/16 Kitas 5 measuring 4-11 Bigha and ¼ share in Khata Khatauni No. 12/18-20 Kita 15 measuring 10-10 Bigha situate in village Kanguti, HB No. 37, Pargana Bharoli, Tehsil Kandaghat, District Solan, HP vide Jamabandi for the year 2000-01, and ½ share in respect of land comprised in Khata Khatauni No. 45/58 Kitas 3 measuring 3-15 Bigha, ¼ share in the land comprised in Khata Khatauni No. 46/59 Kitas 23, measuring 37-19 Bigha, 1/8th share of land comprised in Khata Khatauni No. 47/60 bearing Khasra No. 700 measuring 1-7 Bigha, 1/8th share in the land comprised in Khata Khatauni No. 48/61, bearing Khasra No. 387, measuring 0-13 Bigha situate in village Kothi, HB No. 37, Pargana Bharoli, Tehsil Kandaghat, District Solan, Himachal Pradesh. 3. Learned Civil Judge (Junior Division) dismissed the suit. Plaintiff filed first appeal in the Court of learned District Judge, Solan. 4. The plaintiff moved an application under Order 6 Rule 17 CPC for amendment of the plaint. Plaintiff wanted to amend the plaint by incorporating /inserting paragraph 3(a) in the plaint. It reads as under: “3(a). That Smt. Phoola Devi was firstly married to Shri Chet Ram in village Koon-Bara where she begot six children, named Smt. Janki Devi, Shri Megh Ram, Smt. Kamla Devi, Shri Liaq Ram, Smt. Padma Devi and Shri Shobha Ram. Due to disaccord and disharmony in her marital relations, she left the company of Shri Chet Ram and contacted second marriage with Shri Jash Ram of village Bara. Due to disaccord and disharmony in her marital relations, she left the company of Shri Chet Ram and contacted second marriage with Shri Jash Ram of village Bara. She contacted marriage with Shri Jash Ram in the year 1941 and resided with him in his house as his wife. She begot the plaintiff (Shri Ram Rattan) from the loins of Shri Jash Ram i.e. out of her second marriage. She lived there in the house of Shri Jash Ram for about 6-7 years. Shri Jash Ram, in the year 1948, contacted second marriage with one Smt. Dwarki Devi. Out of this wedlock, the defendant No.2 Shri Liak Ram took birth. After getting married with Smt. Dwarki Devi, Shri Jash Ram forced Smt. Phoola Devi to live a life of destitute. As a result of which their relations became strained and sore. Consequently, in late 1948, Smt. Phoola was compelled to leave the house of Shri Jash Ram alongwith her child Ram Rattan and she again started living with her children begotton by her from the loins of her previous husband Shri Chet Ram, who had expired in the year 1946.” 5. According to the averments made in the application, he could not plead the aforementioned facts despite exercise of due diligence and though the petitioner had made efforts to explain the entire facts to the counsel, however, due to lack of communication, applicant failed to express the above said facts in a chronological order. Amendment was explanatory in nature and same was not likely to change the nature of the suit. No prejudice would be caused to the opposite party. 6. Application was contested by the respondents. It is averred that the petitioner by way of amendment in plaint was trying to wriggle out of the admissions made before the trial Court. Stand taken by the petitioner earlier was that Phoola Devi, mother of the petitioner was the first wife of Jash Ram. He never pleaded that she was firstly married to Chet Ram where she begot six children from the loins of Chet Ram. Thereafter, she contracted second marriage with Jash Ram and after living with Jash Ram, she left Jash Ram and Jash Ram contracted second marriage with Smt. Dwarki Devi. Phoola Devi was proved to be the mother of the petitioner. Thus, the amendment can not be allowed. Thereafter, she contracted second marriage with Jash Ram and after living with Jash Ram, she left Jash Ram and Jash Ram contracted second marriage with Smt. Dwarki Devi. Phoola Devi was proved to be the mother of the petitioner. Thus, the amendment can not be allowed. Application has been filed by the petitioner after suit has been dismissed by the learned trial Court by holding that petitioner was proved to be son of Chet Ram, to whom Phoola Devi was married. Amendment would change the nature of the suit resulting into de novo trial. Learned District Judge dismissed the application vide a detailed order dated 21.8.2015. Hence, this petition. 7. I have heard the learned counsel for the parties and also gone through the record carefully. 8. Suit bearing No. 48-K/2003 was instituted by the petitioner stating therein that he was son of Jash Ram as Phoola Devi was firstly married to Jash Ram and thereafter Jash Ram married Dwarki Devi. Respondent No.2 Liaq Ram was born from the womb of Dwarki Devi. After some time, Phoola Devi could not pull along her marriage and left Jash Ram. She started living separately in village Shilli. Learned trial Court has given findings that Phoola Devi was married to Chet Ram and petitioner was born to Phoola Devi from the loins of Chet Ram. Petitioner has failed to prove that Jash Ram ever married his mother Phoola Devi. It is reiterated that, in fact, Phoola Devi was the wife of Chet Ram. Petitioner can not be permitted to incorporate new facts. Plaintiff while appearing as PW-1, in the cross-examination, has admitted categorically that his mother was married to Chet Ram. Shobha Ram, PW-2 has deposed that Phoola Devi was married to Chet Ram. Suit was instituted on 8.8.2003. Application has been filed merely to prolong the litigation and also to wriggle out of the admissions made by the plaintiff as a witness in the cross-examination. Amendment sought for would completely change the nature and cause of action, which would seriously prejudice the rights which have already accrued in favour of the respondents. Character of the suit can not be permitted to be altered. Amendment of suit at this belated stage would definitely amount to de novo trial. 9. Accordingly, there is no illegality or perversity in the order passed by the Court below. 10. Character of the suit can not be permitted to be altered. Amendment of suit at this belated stage would definitely amount to de novo trial. 9. Accordingly, there is no illegality or perversity in the order passed by the Court below. 10. There is no merit in the present petition and the same is dismissed, so also the pending applications, if any.