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2018 DIGILAW 1712 (HP)

Devmani v. Khem Raj

2018-09-20

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned Trial Court, whereby the application filed for amendment of plaint was ordered to be rejected. 2. The controversy between the parties is in respect of land measuring 0-9-3 bighas bearing Khasra Nos. 19, 121 and 123 situated at Mauza Chail/51, Tehsil Chachiot, District Mandi, H.P. The plaintiff/petitioner has filed the suit for declaration with permanent injunction against the defendants/respondents alleging that the land measuring 0-13-15 bighas comprised in Khewat Khatauni No. 19/33, Khasra Nos. 209, 212 and 226 situated in Mauza Chail/51, Tehsil Chachiot, District Mandi was previously recorded in the ownership of petitioner and respondents No. 4 to 6 and Others. Consolidation started in the year 1989-90 and under the consolidation scheme a Consolidation Committee was appointed of which respondent No. 3 was elected President. Respondents No. 1 and 2 are the sons of respondent No. 3 and on 6.3.1992, the respondents in connivance with the Consolidation Authorities filed separate application for partition of land and the Consolidation Officer without the consent and even without hearing the petitioner and respondents No. 4 to 6 effected partition vide order dated 8.6.1992. While doing so he ignored the actual physical and joint possession of the parties and wrongly clubbed the land of Khewat No. 19/33 measuring 0-13-15 bighas with the other joint land of parties of which respondents No. 1 and 2 were neither the co-owner nor in possession thereof. As a result of this, the suit land was wrongly allotted to respondents No. 1 and 3. It was further alleged that suit land was still in actual physical possession of the petitioner and respondents No. 4 to 6 exclusively and the same had not been delivered to respondents No. 1 and 2 by the Consolidation Authorities till date. Accordingly, the petitioner filed the suit for declaration that the order dated 8.6.1992 passed in partition application No. 57/92 by the Consolidation Officer, Sundernagar, was wrong, illegal and void and not in conformity with the provisions of H.P. Holdings (Prevention of Fragmentation and Consolidation) Act, 1971 (for short the Act). Accordingly, the petitioner filed the suit for declaration that the order dated 8.6.1992 passed in partition application No. 57/92 by the Consolidation Officer, Sundernagar, was wrong, illegal and void and not in conformity with the provisions of H.P. Holdings (Prevention of Fragmentation and Consolidation) Act, 1971 (for short the Act). Similarly, order dated 24.9.1997 passed by the Additional Director, Consolidation of Holdings H.P., in Revision Petition No. 17/94 was wrong, illegal, null and void and not binding upon the petitioner and respondents No. 4 to 6 and the revenue entries showing respondents No. 1 and 2 as owner in possession of the suit land be declared illegal, null & void with further prayer to restrain respondents No. 1 to 3 from forcibly occupying the shares of petitioner and respondents No. 4 and 5 of the suit land and from changing its nature etc. 4. The suit was opposed by respondents No. 1 to 3, who filed joint written statement raising preliminary objections regarding jurisdiction, limitation, maintainability, estoppels and non-joinder etc. On merit, it was averred that the Consolidation Authority had carried out the partition proceedings in accordance with the prescribed procedure that too after hearing all the interested parties including the petitioner and as per the Consolidation Scheme, keeping in view the entitlement, convenience and wishes of the parties, the partition was effected in a fair, transparent and equitable manner and was accepted and acted upon by all the parties concerned and, therefore, the same could not now be questioned at the whims and fancies of the petitioner that too after a lapse of 22 years. The respondents denied that the petitioner and respondent No. 4 were in joint owner in possession of the suit land. As per them, prior to the consolidation the suit land was in possession of respondent No. 3 and respondents No. 1 and 2 being the sons and family members of respondent No. 3, were enjoying it as exclusive owner in possession with respondent No. 3. The order dated 8.6.1992 was passed by the Consolidation Officer with the consent of the petitioner and respondents No. 4 to 6. Lastly, it was averred that respondents No. 1 and 2 were in exclusive owner in possession of the suit land. 5. The order dated 8.6.1992 was passed by the Consolidation Officer with the consent of the petitioner and respondents No. 4 to 6. Lastly, it was averred that respondents No. 1 and 2 were in exclusive owner in possession of the suit land. 5. During the pendency of the suit, when the case was fixed for evidence, the plaintiff-petitioner filed an application for amendment of the plaint, whereby he sought following amendments: "That the plaintiff had filed a CWP No.1446/96 in the Hon''ble High Court of H.P. against the order dated 24.9.1997 passed in Revision Petition No.17/94 by the learned Additional Director Consolidation. The CWP No.1446/96 was not prosecuted on the basis of compromise between plaintiff and defendant number 4, as defendant No.4 as well as defendants No.1 to 3 had assured the plaintiff that revenue entries in respect of suit land will be got changed at appropriate time and moreover all suits pending between plaintiff and defendant No.3 were withdrawn on above said assurance of defendants No.1 to 5. It has been further alleged by the plaintiff in the replication that the defendant No.3 manipulated above said compromise with the aid of defendant No.4 just in order to save himself from the order dated 5.11.1998 passed by learned Senior Sub Judge Mandi, H.P in CMA No.15/94 titled as Devmani Versus Gian Chand, whereby the learned Civil Court had ordered that the defendant No.3 be detailed in the civil imprisonment for a period of three months for breaching intentionally the injunction order passed by the learned civil Court dated 16.12.1993, passed in application No.147/93 titled as Devmani Versus Gian Chand. At the time of abovesaid compromise appeal against the above said order of detention filed by the defendant No.3 was pending before the learned Additional District Judge, Mandi, H.P. However, by virtue of non prosecution of CWP No.1446/96, the plaintiff had not relinquished his right title and interest over the suit land, neither there was any written or oral compromise to that effect and moreover no compromise was arrived at regarding suit land or with defendants No.1 and 2." 6. The application came up for consideration before the learned trial Court on 6.3.2018 and it dismissed the application. 7. I have heard learned counsel for the parties and have gone through the record of the case. 8. The application came up for consideration before the learned trial Court on 6.3.2018 and it dismissed the application. 7. I have heard learned counsel for the parties and have gone through the record of the case. 8. Pure question of law is involved in the instant petition as to whether the petitioner without showing due diligence is entitled to claim the amendment, as prayed for. 9. It is not in dispute that nowhere in the petition has the petitioner pleaded due diligence which necessitated the filing of the amendment. 10. It is further not in dispute that the issues in this case stand framed by the learned Trial Court on 9.3.2016 and the case had thereafter been fixed for recording of the evidence of the plaintiff witnesses. 11. Admittedly, the trial has commenced, therefore, in such circumstances, there is no indefeasible right available to the parties to amend their pleadings, unless the condition as envisaged in proviso to Rule 17 of Order 6 is satisfied, which reads thus:- ""17. Amendment of Pleadings.- The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, andall 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. This Court considered the scope and ambit of the amendment carried out in Rule 17 of Order 6 while adjudicating CMPMO No. 360 of 2015, titled Padam Kaushal Vs. Sh. Rajan Dogra (deceased) through his LRs, decided on 27.8.2015 and it was held:- "6. At the outset it may be observed that it was with a view to shorten litigations and speed up the trial of cases that Rule 17 was omitted by the amendment Act 46 of 1999, but its omission evoked much controversy leading to wide protest and agitations and consequently the rule was restored in its original form by amending act 22 of 2002 with the rider in the shape of proviso, limiting the power of amendment to some extent. 7. This Court in Jeet Ram Kishore and Others Vs. 7. This Court in Jeet Ram Kishore and Others Vs. under Singh , (2005) AIR H.P. 21 has held that the reasons for adding proviso is to curtail delay and to expedite hearing of cases. In that case, the defendant had sought amendment of written statement after the plaintiffs'' evidence was closed and it was held that the amendment could not be allowed as defendant had failed to show that after exercise of due diligence, he could not apply for amendment before the commencement of trial. "14. While filing the application for amendment, except for mentioning regarding recording of passage by the Settlement Collector in the record-of-rights, there is not a murmur either regarding the said order having been set aside or the matter being further (sic) before the Financial Commissioner. When specifically questioned regarding this omission, learned Senior Counsel was unable to say anything in this behalf Necessity for asking him arose when the application was filed on 3-7-2003, long after passing of the order by the Settlement Collector, and its having been set aside by the Divisional Commissioner, that in order to seek equitable and discretionary relief from the Court, least that was expected of the defendants was to have come straight and clean by bringing all the correct, facts to the notice of the Court. In this background, I have no hesitation in coming to the conclusion that the omission to mention about the order of the Collector having been set aside and the matter being pending before the Financial Commissioner, was intentional and wilful. 16. On a bare perusal of this proviso, it is evident that ordinarily amendment of pleadings is not to be allowed after the trial had commenced, unless of course, the Court was satisfied that the party concerned, could not apply after exercise of due diligence for such amendment before the commencement of the trial. Admittedly, in. the facts and circumstances of the case, trial had commenced when application under Order VI, Rule 17 read with Section 151 of the C.P.C. was filed. Admittedly, in. the facts and circumstances of the case, trial had commenced when application under Order VI, Rule 17 read with Section 151 of the C.P.C. was filed. Rather it was at the stage of defendants" evidence, In these circumstances, again when a reference is made as to what is set out in the application seeking amendment, material portion whereof is extracted hereinabove, it is evident that except for using the words "after exercise of due diligence" averments in the application are not enough to enable the Court to consider the application to the light of the amended provisions, particularly proviso to Order VI, Rule 17 as it stands after the Code of Civil Procedure (Amendment) Act, 2002." 8. The Hon''ble Supreme Court has interpreted the proviso to be requirement mandated to prevent frivolous applications for amendment intended, only to delay the trial. In Salem Advocate Bar Association Vs. Union of India , (2005) AIR SC 3353, it was held as follows:- "27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. 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 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision. Service through Courier." 13. It is evident from the perusal of the aforesaid proviso and the exposition of law, as noticed above, 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 the trial. It is evident from the perusal of the aforesaid proviso and the exposition of law, as noticed above, 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 the trial. In other words, it was incumbent upon the petitioner, in the event of trial having been commenced, to have specifically pleaded that in spite of due diligence she could not raise the matter, now sought to be raised. Concededly, there is not even a whisper in the entire application regarding this fact. After all right to amend is not an absolute right, but depend on various principles. 14. As observed earlier, the suit out of which the present proceeding arise is pending before the trial court for recording the evidence on behalf of plaintiff''s witnesses and, therefore, the trial in the case had already begun. 15. In Kailash versus Nanhku and Others , (2005) 4 SCC 480 , the Hon''ble three Judges'' Bench of the Hon''ble Supreme Court while dealing with an election petition in no uncertain terms held that in a civil suit the trial begins when the issues are framed and the case is set down for recording of evidence. It is apt to reproduce the following observations: - "Trial" of election petition, when it commences? 13. At this point the question arises: When does the trial of an election petition commence or what is the meaning to be assigned to the word ''trial'' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence " 16. In Baldev Singh and Others versus Manohar Singh and Another , (2006) 6 SCC 498 , the Hon''ble Supreme Court held that commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in a limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments, as would be evident from the following observations: "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has High Court of H.P. already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings. " 17. In Ajendraprasadji N.Pandeyand another versus Swami Keshavprakeshdasji N. and Others , (2006) 12 SCC 1 , the Hon''ble Supreme Court after placing reliance on the judgment of Kailash reiterated that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence . This would be evident from the following observations: "60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by t his Court in Kailash vs. Nankhu , (2005) 4 SCC 480 , the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence." 18. What, therefore, can be discerned from the various judgments referred to above, is that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. What, therefore, can be discerned from the various judgments referred to above, is that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. Once it is so, then in terms of proviso to rule 17 of order 6, respondent was required to show due diligence and explain the circumstances under which he could not have raised the matter before commencement of the trial. 19. The object of introducing the amendment in order 6 rule 17 CPC vide Amendment Act 46 of 1999 and further the question when trial will commence was a subject matter of recent decision of the Hon''ble Supreme Court in Mohinder Kumar Mehra vs. Roop Rani Mehra and Others , (2018) 2 SCC 132 , wherein reiterating the ratio of the judgment as laid down in Salem Bar Association , it was observed as under: 14. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases. 15. This Court in Salem Advocate Bar Association, T. N. Vs. Union of India , (2005) 6 SCC 344 has noted the object of Rule 17 in Para 26 which is to the following effect: "26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. 15. This Court in Salem Advocate Bar Association, T. N. Vs. Union of India , (2005) 6 SCC 344 has noted the object of Rule 17 in Para 26 which is to the following effect: "26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision." 16. The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal and Others. Vs. K. K. Modi and Others. , (2006) 4 SCC 385 . This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:- "15. The object of the rule is that the 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. 16. Order 6 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." 17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court''s jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses". Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences." 20. As already observed above, there is not even a whisper in the entire application regarding exercise of due diligence and, therefore, reliance placed by the respondents on the following judgments is totally misplaced: 1. Paramjit Singh @ Mithu Singh Vs. State of Punjab through Secretary (Home) , (2008) AIR SC 441. 2. Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jadoo , (2009) 5 SCC 713 3. Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others , (2006) 4 SCC 385 . 4. South Konkan Distilleries and anr. Vs. Prabhakar Gajanan Naik and ors. , (2008) 14 SCC 632 5. North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRs , (2008) 8 SCC 511 21. Therefore, notwithstanding the object of the Rule is that the courts should try the merits of the case and allow 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, nonetheless after addition of the proviso, it has to be shown that in spite of due diligence to amend as sought for, could not have been sought earlier. 22. 22. Having failed to prove on record due diligence, no exception can be taken by the petitioner to the order passed by the learned Trial Court. 23. The net result of the above discussion is that the petition without merit needs dismissal and is dismissed accordingly, leaving the parties to bear their own costs. Pending application(s), if any, shall also stand disposed of.