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2018 DIGILAW 844 (HP)

Tuaru v. Hasanu Devi

2018-05-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Defendants No.1 and 2 are the petitioners, who aggrieved by the rejection of their application for amendment of the written statement, have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 11.11.2016 passed by the learned Civil Judge (Junior Division) , Chachiot at Gohar, District Mandi, H.P. The parties hereinafter shall be referred to as plaintiffs and defendants. 2. The plaintiffs have filed a suit for declaration with respect to the land as described in the plaint on the allegations that the defendants and plaintiffs are the sons and daughters of late Almu and the property being ancestral and inherited from their forefathers Budhu and Dahlu and the defendants and plaintiffs being sons and daughters were entitled to inherit the suit land. It was alleged that the defendants had got fabricated and manipulated the Will dated 05.09.2011 from Almu which had been registered in the Office of Sub Registrar, Sadar, District Mandi, H.P. The Will was the outcome of fraud, misrepresentation, undue influence, fabrication and manipulation. 3. Defendants No.1 and 2 filed written statement on 08.05.2013 wherein they denied the allegations made in the plaint qua the manipulation of the Will and infact admitted the execution of the Will. 4. Defendants No.3 to 6 in their written statement filed on 16.04.2013 also denied the allegations qua manipulation of the Will and submitted that Almu was living with Smt.Begmu Devi as he had divorced from his first wife Ramkali, who gave birth to the plaintiffs and defendants No.1 and 2. 5. Even though, the suit had been pending adjudication since the year 2012, but defendants No.1 and 2 took no steps to amend the written statement up till 08.08.2016 when the matter was fixed for the defendants'' evidence. The application came to be rejected by the learned trial Court on the ground that the same was not bonafide, had been filed belatedly, that too without disclosing that it was in spite of due diligence that defendants No.1 and 2 could not raise all the issues now sought to be raised before the commencement of the trial. Lastly, it was averred that the admission already made by defendants No.1 and 2 could not be permitted to be withdrawn. I have heard the learned counsel for the parties and gone through the material placed on record. 6. Lastly, it was averred that the admission already made by defendants No.1 and 2 could not be permitted to be withdrawn. I have heard the learned counsel for the parties and gone through the material placed on record. 6. The power of superintendence conferred by Article 227 is to be exercised most sparingly and with circumspection that too in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 7. In D.N. Banerji v. P.R. Mukherjee , (1953) AIR(Supreme Court) 58, the Hon''ble Supreme Court held as under: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere." 8. In Waryam Singh and another v. Amarnath and another , (1954) AIR(Supreme Court) 215, a Constitution Bench of the Hon''ble Supreme Court has examined the scope of Article 227 of the Constitution and observed as under:- "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee , (1951) AIR(Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 9. In Mohd. Yunus v. Mohd. Mustaquim and others , (1984) AIR(Supreme Court) 38, the Hon''ble Supreme Court held that the High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice. 10. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice. 10. In Nibaran Chandra Bag v. Mahendra Nath Chughu , (1963) AIR(Supreme Court) 1895, the Hon''ble Supreme Court held that interference under Article 227 of the Constitution, finding of facts recorded by Authority should have been found to be perverse or patently erroneous and de hors factual and legal position on record. 11. In Rena Drego v. Lalchand Soni and others , (1998) 3 SCC 341 , the Hon''ble Supreme Court has categorically held that the power under Article 227 of the Constitution is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them. 12. Similar reiteration can be found in Chandra Bhushan v. Beni Prasad and others , (1999) 1 SCC 70 ; Savitrabai Bhausaheb and others v. Raichand Dhanraj Lunja , (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. V. Dyes and Chemical Workers Union and another , (1999) 2 SCC 143 . 13. In Union of India and others v. Himmat Singh Chahar , (1999) 4 SCC 521 , the Hon''ble Supreme Court held that power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence. 14. In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd. , (1999) 6 SCC 82 , the Hon''ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 15. In Mohan Amba Prasad Agnihotiri v. Bhaskar Balwant Aheer , (2000) AIR(Supreme Court) 931, the Hon''ble Supreme Court held that the jurisdiction of High Court under Article 227 of the Constitution is not appellate but supervisory. It cannot interfere with the finding of facts recorded by the Courts below unless there is no evidence to support findings or findings are totally perverse. It cannot interfere with the finding of facts recorded by the Courts below unless there is no evidence to support findings or findings are totally perverse. 16. In Union of India v. Rajendra Prabhu , (2001) 4 SCC 472 , the Hon''ble Supreme Court held that High Court in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below. 17. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil , (2010) 8 SCC 329 , the Hon''ble Supreme Court observed that powers of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court. 18. Similar reiteration can also be found in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another , (2011) AIR(Supreme Court) 1353, and Bandaru Satyanarayana v. Imandi Anasuya , (2011) 12 SCC 650. 19. In Abdul Razak (D) through Lrs. And others v. Mangesh Rajaram Wagle and others , (2010) 2 SCC 432 , the Hon''ble Supreme Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 20. In Commandant, 22nd Battalion, CRPF and others v. Surinder Kumar , (2011) 10 SCC 244 , the Hon''ble Supreme Court reiterated that only in an extreme case, where on the face of it, there is perversity or irrationality, there can be judicial review under Article 226 or 227. 21. From the aforesaid conspectus of law, it can conveniently be held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirement is satisfied:- (i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby. (ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned. 22. Bearing in mind the aforesaid exposition of law, I would now advert to the contents of paras 2, 5 and 6 of the plaint which read thus:- "2. That the plaintiffs are the daughters and the defendants No.1 to 5 are the sons and daughters of the late Sh. Almu s/o Sh.Budhu S/o Sh. Dahlu R/o of Vill. Tapandhi, P.O. Brikhamani, Teh. Sadar, District Mandi, H.P. who (Sh.Almu) has ancestral landed property in his name inherited by him from his forefather i.e. Budhu and Dahlu and Pritam which is/was the ancestral one and hindu coparcenary property. 5. That the defendants has got manipulated and fabricated a will on 05.09.2011 in their favour from Sh.Almu which has been got registered in the office of the Sub-Registrar, Sadar, District Mandi, H.P. vide registration No.371/2011 dt. 05.09.2011 as alleged. Copy of Will is enclosed herewith. 6. That the aforesaid will is/was never executed by late Sh.Almu Ram and the same is outcome of fraud, misrepresentation of facts, undue influence and fabrication as well as the same is wrong and illegal as late Sh. Almu Ram has not put his thumb impression on the will. Moreover in the year Sept. Copy of Will is enclosed herewith. 6. That the aforesaid will is/was never executed by late Sh.Almu Ram and the same is outcome of fraud, misrepresentation of facts, undue influence and fabrication as well as the same is wrong and illegal as late Sh. Almu Ram has not put his thumb impression on the will. Moreover in the year Sept. 2011 the condition of father of the parties was not good and was critical as he was suffering from lungs infection as well as hard of hearing and not able to identify and recognize any person as his eye vision was so poor, that he could not walk without assistance of other person." 23. In the written statement that was originally filed by defendants No.1 and 2, the reply to paras No.2, 5 and 6 is as under:- "2. That the para No.2 of the plaint is admitted to be correct. 5. That the para No.5 of the plaint is admitted to extent that the father of the replying defendant had executed a will vide regt. No.371/11 dated 5-9-2011, rest para of the plaint is not admitted hence denied. 6. That para No.6 of the plaint is wrong and illegal and is not admitted to be correct hence denied. It is incorrect that the health of the father of the party in the suit late Sh. Almu was not good as alleged. It is however submitted that the father of the replying defendant was physically fit at the time of execution of Will. Rest para of the plaint is not admitted hence denied." 24. Now, adverting to the amendment, the aforesaid paragraphs sought to be amended are as under:- "That para No.2 of the plaint is wrong and illegal and not admitted to be true. The plaintiff Hasnu, Reshmu and the replying-defendants are only sons and daughters of Sh. Almu, Begmu Devi is not the wife of Sh. Almu and the other defendants are not the sons and daughters of Sh. Almu. However, the suit property is joint Hindu family, co-parcenary property. 5. That para No.5 of the plaint is admitted to be true. However, the replying-defendants have no role in manipulating and fabricating the WILL. 6. That para No.6 of the plaint is admitted." 25. Order 6 Rule 17 CPC reads thus:- "17. Almu. However, the suit property is joint Hindu family, co-parcenary property. 5. That para No.5 of the plaint is admitted to be true. However, the replying-defendants have no role in manipulating and fabricating the WILL. 6. That para No.6 of the plaint is admitted." 25. Order 6 Rule 17 CPC reads thus:- "17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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." 26. A perusal of the proviso would show that it clearly bars an application for amendment either plaint or the written statement 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. 27. Adverting to the application for amendment as filed by defendants No.1 and 2, it does not even contain a whisper in this regard. Nowhere has defendants No.1 and 2 averred that even after due diligence they could not raise the matter before the commencement of the trial. 28. At this stage, Shri Sanjeev Kuthiala, learned counsel for petitioners/defendants No.1 and 2, would vehemently argue that while dealing with amendment of the written statement, the Courts are more liberal than those regarding amendment of plaint as the question of prejudice is far less in the former than in the latter and addition of new ground of defence or substituting or altering defence or taking inconsistent pleas in the written statement can also be allowed. In fact, the Courts have also allowed withdrawal of admission. 29. In fact, the Courts have also allowed withdrawal of admission. 29. There can be no quarrel with the proposition as canvassed by learned counsel for petitioners/defendants No.1 and 2, but then while allowing a new ground or substituting or altering defence or even taking inconsistent pleas in the counter statement, the Court is required to ensure that in doing so, it does not result in causing grave injustice and irretrievable prejudice to the plaintiffs or displacing them completely. 30. In the instant case, defendants No.1 and 2 have not only in the original written statement admitted the execution of the Will, but have further admitted that late Sh. Almu was having equal love and affection for all his children and during his life time had always stated that his property will be distributed amongst his sons and daughters, irrespective of whether they are from the first wife Ramkali i.e. plaintiffs and defendants No.1 and 2 or from his second wife Begmu being defendants No. 3 to 6. 31. Therefore, in the given circumstances, the withdrawal of the admission would not only cause grave injustice and irretrievable prejudice to the plaintiffs but would displace them completely. Once that be so, obviously, the application as filed by defendants No.1 and 2 cannot be termed to be bonafide. 32. In view of the discussion made hereinabove, I am of the considered view that it cannot be held that the learned trial Court has acted illegally or with material irregularity in exercise of its jurisdiction in not allowing the application for amendment of the written statement of defendants No.1 and 2. 33. Accordingly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.