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2018 DIGILAW 35 (JK)

Mohd. Ramzan Ganai v. Financial Commissioner

2018-01-31

ALI MOHD.MAGREY

body2018
JUDGMENT : Ali Mohd. Magrey, J. 1. These two applications seeking permission to amend the writ petition necessitate narration of the grievance of the petitioner in the writ petition and its backdrop. 2. The petitioner in his writ petition, OWP No. 571/2015, filed on 04.04.2015, has challenged orders dated 09.05.2013, 26.03.2014 and 18.02.2015, the first and the last having been passed by the Joint Financial Commissioner and the second one by the Financial Commissioner, respondents 2 and 1, respectively herein. 3. The order dated 09.05.2013 was passed by the Joint Financial Commissioner in the revision petition field against mutation No. 170 of village Galwanpora, Tehsil and District Budgam, stated to have been attested on 29.12.1960, setting aside the same with direction to the Tehsildar, Budgam to make a de novo enquiry and pass fresh order as per Muslim Personal Law. That revision petition had been filed by the sister of the writ petitioner claiming that she was a shareholder in the property and that the mutation had been attested at her back. The writ petitioner states to have filed an application on 02.09.2013, obviously after about four months of the disposal of the revision petition, before the Financial Commissioner for re-hearing of the case. That application was dismissed by the Financial Commissioner by order dated 26.03.2014. However, while dismissing the application, the Financial Commissioner observed in the order that the aggrieved party was at liberty to file a motion for appropriate remedy before the Joint Financial Commissioner. This is the second order challenged by the petitioner in the writ petition. 4. Thereafter, the petitioner states to have made an application for re-hearing before the Joint Financial Commissioner which, according to him, was wrongly treated as a review application against the original order dated 09.05.2013, and was dismissed by order dated 18.02.2015. This is the third order challenged in the writ petition by the writ petitioner. 5. As mentioned above, the writ petition was presented before the Court on 04.04.2015 and notice therein was issued on 06.04.2015. Perusal of the writ petition reveals that there is no ground of challenge taken therein against any of the aforesaid orders. The case set up against the impugned orders in the writ petition, as reflected in para 6 thereof, is as under: "6. Perusal of the writ petition reveals that there is no ground of challenge taken therein against any of the aforesaid orders. The case set up against the impugned orders in the writ petition, as reflected in para 6 thereof, is as under: "6. That, the Joint Financial Commissioner was kind enough to pass an order dated 18.02.15 (copy annexed herewith as Annexure W-3) whereby he has taken the re-hearing application as review. Furthermore observed that he has also gone through the order under review and the impugned mutation. The order under review has actually been passed by his predecessor. Therefore, under law it is necessary to obtain sanction from the Financial Commissioner (R) for reviewing the order under challenge. The observation makes the depth in law of respondent No. 2 clear. That respondent No. 2 is enable (sic) to distinguish (i) between review application and re-hearing application (ii) his status. Therefore the orders of respondent No. 2 are liable to be set aside and also of respondent No. 1." 6. It may be mentioned here that, meanwhile, pursuant to the aforesaid order dated 09.05.2013, the Tehsildar attested the mutation Order No. 170 on 22.08.2015. 7. The petitioner on 18.11.2015 made a motion, MP No. 01/2015, seeking permission to amend the writ petition to incorporate paras 7(A) and 7(B) as under: "7-A. That the impugned mutation being No. 170 of village Wathdoora, Galwanpora, Tehsil Budgam regarding the inheritance of late Mohammad Ganie as attested by respondent No. 10 is contrary to law having been passed at the back of the petitioners without hearing them and depriving them of the share of the property as devolved upon them under law. The impugned mutation was passed by respondent No. 10 without making any enquiry and without considering that the parties were governed by custom and that the mutation in favour of the petitioners had been attested more than sixty years back in accordance with the custom adopted by the family from primitive times. A copy of the mutation No. 170 is annexed herewith and is marked as Annexure W-5. 7-B. That taking advantage of the orders passed by respondents 1 and 3, the private respondents with the assistance of respondent No. 10 has hastened the process of mutation and got a new mutation attested at Headquarters in the absence of the petitioner and without summoning on 22.8.2015. 7-B. That taking advantage of the orders passed by respondents 1 and 3, the private respondents with the assistance of respondent No. 10 has hastened the process of mutation and got a new mutation attested at Headquarters in the absence of the petitioner and without summoning on 22.8.2015. By virtue of the said mutation, the part of the landed property has been mutated in the name of the respondents 3 to 9 without any authority of law." 8. Then in paras 3 and 4 of the application, the petitioner sought a further permission to implead Tehsildar Budgam as party respondent No. 10 in the writ petition and to incorporate the relief of seeking quashing of mutation No. 170 attested by respondent No. 10. 9. Notice of the aforesaid motion for amendment was issued on 21.11.2015. The contesting respondent No. 3 filed objections to the amended writ petition on 28.12.2015, though the motion for amendment was not yet allowed and the amended writ petition, too, was yet to be taken on record. 10. Be that as it may, on 27.04.2017, the writ petitioner made another motion for amendment, now, seeking to incorporate para 7-C to the following effect: "7-C. That the petitioner respectfully submits that the Revision Petition filed by the respondent before the learned Financial Commissioner was barred by time/limitation and was entertained by the respondent without any application of the respondent No. 3 seeking condonation of delay or explaining the reasons for delay. It is stated that under law, assuming though denying that mutation No. 170 of Village Wathdora, Galwanpora recorded as far back as on 29.12.1960 was invalid for any reason of whatever nature, yet, the same was required by the aggrieved party to be challenged within a period of three months, which admittedly was not done by the respondent No. 3 till 11.05.2009 i.e., for forty nine years. It is stated that in view of the said position, it was required for respondent No. 3 to explain the delay before respondent No. 1. The Revision Petition could be entertained by respondents 1 and 2 only after recording satisfaction for the cause of delay. Respondents 1 and 2 on the contrary passed the impugned orders in ex-parte without hearing the petitioner and without recording any satisfaction about the delay and therefore passed the orders impugned in gross disregard of the jurisdiction/powers vested in them." 11. Respondents 1 and 2 on the contrary passed the impugned orders in ex-parte without hearing the petitioner and without recording any satisfaction about the delay and therefore passed the orders impugned in gross disregard of the jurisdiction/powers vested in them." 11. So, the amendment in the second application is sought to incorporate the plea that the revision petition filed before was barred by limitation and that neither had the revision-petitioner explained the delay, nor did respondents 1 and 2 record any satisfaction for the cause of delay. 12. Objections to the second motion for amendment stand filed on behalf of respondent No. 2. Apart from touching and contesting the application on merits of the case, the amendment is opposed on the ground that in terms of Order 2, Rule 2 CPC, when a petition is filed and the pleas available to a party are not taken therein, he is precluded from taking those pleadings subsequently. It is stated the in the instant case the petitioner was entitled to raise any pleading, he wanted to, in his writ petition and he having not done so, the application filed by him for amendment of the writ petition is legally misconceived. 13. I heard the learned counsel, perused the original record of the Revisional Forum and considered the matter. 14. After the two applications were heard and orders were reserved, the learned counsel for the parties produced photocopies of certain judgments, the most important amongst them being the decision of the Supreme Court in Revajeetu Builders and Developers vs. Narayanaswamy and Sons, (2009) 10 SCC 84 , produced by Mr. Haqani. This is the most relevant and latest decision of the Supreme Court on the subject of amendments. The facts in that case may be noticed. 15. The appellant (before the Supreme Court) had filed a suit against the respondents for recovery of a sum of Rs. 52,97,111.00 with interest at 18% per annum from the date of filing of suit till payment. He alternatively had taken the plea that if the court for any reason came to the conclusion that a decree for the amount claimed could not be passed, as prayed for then the court may pass a decree for Rs. 19,12,500.00 with interest as above. The appellant had also claimed that it be declared absolute owner of the scheduled property on the basis of sale deed dated 30.09.1987. 19,12,500.00 with interest as above. The appellant had also claimed that it be declared absolute owner of the scheduled property on the basis of sale deed dated 30.09.1987. The sale deed had been executed by the respondents in favour of the appellant after obtaining permission from the State of Karnataka under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. A petition in public interest, which ultimately came up before the Supreme Court, was filed challenging the transfer of aforesaid land. The Supreme Court had held the sale deed invalid and inoperative. 16. After the appellant had filed the aforesaid suit, the Urban Land (Ceiling and Regulation) Act, 1976 was repealed. The appellant filed an application under Order 6 Rule 17 CPC seeking leave to amend the suit. That application was allowed by the trial court. The respondents preferred a writ petition under Article 227 of the Constitution of India against the order allowing the amendment on the ground that it has changed the entire nature of the suit and cause of action and that the amendment would be taking away admission in the plaint by the appellant and such an amendment could not be permitted. The High Court held that the appellant, while seeking permission to amend the plaint, was trying to introduce a new case which was not his case in the original plaint; that the amendment, if allowed, would certainly affect the rights of the respondents adversely; and that the appellant cannot be permitted to withdraw the admissions made in the plaint as it would affect the rights of the respondents. 17. The Supreme Court in the judgment gave the historical background of Order 6, Rule 17 CPC and in para 29 of the judgment observed as under: "29. We are tracing the legislative history, objects and reasons for incorporating Order 6 Rule 17 not because it is necessary to dispose of this case, but a large number of applications under Order 6 Rule 17 are filed and our courts are flooded with such cases. Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases. In our view, clear guidelines may help in disposing of these applications satisfactorily." 18. Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases. In our view, clear guidelines may help in disposing of these applications satisfactorily." 18. Analysing both the English and Indian cases on the subject of amendments, ranging from the leading English case: Cropper vs. Smith, (1884) 26 Ch D 700 (CA) and the earlier to that English case Tidesley vs. Harper, (1878) 10 Ch D 393 : (1874-80) All ER 1612 (CA) to Gautam Sarup vs. Leela Jetty, (2008) 7 SCC 85 , the Supreme Court, in para 63 of the judgment, under the caption factors to be taken into consideration while dealing with applications for amendments, stated the basic principles emerging from the decided cases which ought to be taken into consideration while considering an application for amendment. The observation made by the Supreme Court in para 64 is equally guiding in nature. Paras 63 and 64 of the judgment are quoted hereunder: "Factors to be taken into consideration while dealing with applications for amendments 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case. (2) whether the application for amendment is bona fide or mala-fide. (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." 19. I have already mentioned, rather quoted, the case of the petitioner in the writ petition, which is primarily that his application for "re-hearing" was treated as review. I have also mentioned the amendments which the writ petitioner proposes to incorporate in the writ petition. The question is whether the amendments sought are bona fide, legitimate and honest? 20. It be seen that by way of amendment, as mentioned in his first application filed in 2015, essentially the amendment is sought to challenge the mutation No. 170 attested by respondent No. 10 on 22.08.2015 on the ground that the same was attested at the back of the petitioner, without summoning him and without hearing him. So, principally, the petitioner is alleging that mutation order No. 170 of 22.08.2015 was attested without summoning him and at his back. However, this allegation is wholly belied by the original record called for from the Joint Financial Commissioner. This record reveals that the petitioner on 8.8.2014 made an application supported by an affidavit before the Joint Financial Commissioner, conspicuously praying therein as under: "That the applicant is filing the present application for review/rehearing of the matter on merits and justice also demands that this Hon'ble Court decides the revision petition on merits till then Tehsildar Budgam may be directed not to proceed in the matter otherwise the present application will become infructuous." Obviously, as mentioned in the prayer clause, the application had been made for review. Then this prayer clause suggests the consciousness of the petitioner about the proceedings going on before the Tehsildar. Not only that, in para 4 of the application, the petitioner has made a glaring admission of the fact that he had the knowledge about the mutation proceedings going on before the Tehsildar. The averment is quoted hereunder: "4. Then this prayer clause suggests the consciousness of the petitioner about the proceedings going on before the Tehsildar. Not only that, in para 4 of the application, the petitioner has made a glaring admission of the fact that he had the knowledge about the mutation proceedings going on before the Tehsildar. The averment is quoted hereunder: "4. That the non-applicant in the meanwhile has approached the Tehsildar Budgam for effecting Mutation of the suit land and the suit land and the Tehsildar is hell-bent to see in the matter." 21. Apart from the above, accompanying the said application with the aforesaid averment and prayer, the petitioner also made an application for condonation of delay supported by an affidavit. In para 2 thereof, the petitioner made a clear admission that he was summoned by the Tehsildar. The averment contained in the application is quoted below: "02. That the applicant came to know about the fate of the case when he was called by Tehsildar Budgam." 22. So, these averments and the prayer made by the petitioner in his aforesaid applications, apart from establishing that it was, in fact, a review petition, not an application for re-hearing, clearly demonstrate that he was duly summoned by the Tehsildar and he had full knowledge of the proceedings initiated by and pending before the Tehsildar pursuant to the order passed by the Joint Financial Commissioner, but he chose not to appear before the Tehsildar or to participate in the proceedings. The petitioner having willfully chosen not to participate in the proceedings, is now seeking to turn around and make a bald allegation that the mutation was attested at his back, without summoning him. If the petitioner had a bona fide and legitimate case to plead before the Tehsildar and to bring to his notice and prove it before him that the parties were governed by custom, not by Muslim Personal Law, nothing prevented him from appearing before the Tehsildar, participating in the proceedings and proving his point before him. The petitioner, instead, chose to come to this Court with the application for amendment on statement which is not supported by the original record of the revision petition. Therefore, I am of the view that the application is neither bona fide nor legitimate. The petitioner, instead, chose to come to this Court with the application for amendment on statement which is not supported by the original record of the revision petition. Therefore, I am of the view that the application is neither bona fide nor legitimate. It is a ploy on the part of the petitioner, devised to prolong the litigation and engage the respondent in a litigation of attrition. 23. Coming to the second application, OM No. 01/2017, the amendment therein is sought to incorporate the plea that the revision petition filed before the respondents 1 and 2 was barred by limitation and that neither had the revision-petitioner explained the delay, nor did respondents 1 and 2 record any satisfaction for the cause of delay, I have perused the revision petition. In paragraph 8 thereof, the respondent No. 3 had clearly mentioned that she got knowledge of the mutation for the first time on 17.04.2009 and explained the facts and circumstances which had led to her knowledge and the steps, thereafter, take by her. That being so, there was no requirement for the respondent Nos. 1 and 2 to record any satisfaction, especially so when the petitioner herein had not raised any such objection despite he having been summoned and having participated in the proceedings for a period of 3 years and about 10 months ranging from 14.07.2009, the date when he through his son caused his first appearance in the revision petition, to 09.05.2013, the date the decision in the revision petition was announced. It is not that he was set ex-parte, as is sought to be given out; he was even personally present in the revision petition on the date preceding the date of announcement of the decision therein. Curiously, no such objection was even raised in the review petition referred to above. It is seen that after gaining knowledge about the mutation effected in 1960 on 17.04.2009, respondent No. 3 filed the revision petition on 11.05.2009. There is no dispute that a revision petition has to be filed within three months from the date of order. Curiously, no such objection was even raised in the review petition referred to above. It is seen that after gaining knowledge about the mutation effected in 1960 on 17.04.2009, respondent No. 3 filed the revision petition on 11.05.2009. There is no dispute that a revision petition has to be filed within three months from the date of order. And the date of order, as held by the Supreme Court in Madan Lal vs. State of U.P. AIR 1975 SC 2085 , cited and relied upon by the learned counsel for respondent No. 3, means "date of knowledge of the order passed without notice to and in absence of the appellant." It is nobody's case that respondent No. 3 had been summoned at the time of effecting the mutation in 1960 or that he had the knowledge of such mutation. 24. Above being the factual position, there is no question of the revision petition having been silent about the limitation or revision-petitioner having failed to explain the delay therein or respondents 1 and 2 having failed to record any satisfaction for the cause of delay, for, obviously, there was none. Therefore, there is no question of raising such a plea by way of amendment in the writ petition. The attempt is again neither bona fide nor legitimate, it is only aimed at prolonging the litigation. 25. In light of the above, the two applications are dismissed. 26. List the main writ petition for further proceedings. The record obtained from the Financial/Joint Financial Commissioner shall be retained till final disposal of the case.