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2018 DIGILAW 87 (JK)

Reeta Anadi v. Roopa Pachnanda

2018-02-16

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : Ali Mohammad Magrey, J. The Petitioners have filed this petition under Section 104 of the Constitution of Jammu and Kashmir, invoking the power of superintendence of this Court to quash the impugned order dated 3rd December, 2013, passed by the learned 1st Additional District Judge, Jammu in appeal titled “Dr. V.K. Pachnanda vs. Smt. Reeta Anadi and Others”, in the application filed by the respondent under Order 6, Rule 17 CPC, for making certain amendments in the plaint on account of developments which have taken place after the death of original plaintiff. Jurisdiction of the civil Court to allow an application for amendment of plaint after a final decree is passed is in question in this writ petition, which arises out of order dated 03.12.2013, passed by the Court of learned 1st Additional District Judge, Jammu. 2. The facts narrated in the petition are that the husband of respondent namely Dr. V.K. Pachnanda, had filed a suit against the petitioners for their ejectment from the premises, comprising of one shop, three rooms, kitchen, bathroom and varanda situated at Exchange Road, Jammu, which was decreed in terms of final Judgment passed by the Court of Munsiff 1st Class, Jammu, on 16th March, 2011 in favour of respondent's husband (plaintiff) and against the petitioners-defendants with direction to handover peaceful and vacant possession of the suit premises comprising of one shop, three rooms, kitchen, bathroom and varanda situated at Exchange Road, Jammu, within a period of two months from the date of decree. 3. After passing of the aforesaid Judgment and decree, late husband of respondent preferred a Civil First Appeal against the Judgment dated 16th March, 2011 passed in the suit titled “Dr. V.K. Pachnanda vs. Reeta Anadi and others” passed by the Court of Munsiff 1st Class, Jammu, in so far as issue No. 4 was concerned, before the Court of learned 1st Additional District Judge, Jammu and also prayed for setting aside the above said Judgment and decree dated 16th March, 2011, as regards to issue No. 4 was concerned with a further prayer to decree the suit of the plaintiff on issue No. 4 also. 4. Petitioners herein had preferred a Civil First Appeal against the above said Judgment and decree dated 16th March, 2011, passed by the Court of 3rd Additional Munsiff, Jammu, in a civil suit titled “Dr. 4. Petitioners herein had preferred a Civil First Appeal against the above said Judgment and decree dated 16th March, 2011, passed by the Court of 3rd Additional Munsiff, Jammu, in a civil suit titled “Dr. V.K. Pachnanda vs. Reeta Anadi and others”, before the Court of 1st Additional District Judge, Jammu. 5. During the pendency of the above said appeals, husband of the respondent expired on 29th September, 2011 and, as such, respondent herein preferred an application for impleadment as appellant in place of her deceased husband in the above said appeal, being the sole legal representative of the deceased and the respondent was, accordingly impleaded as a party-appellant in the above titled appeal titled “Dr. V.K. Pachnanda vs. Reeta Anadi and others”, which is pending adjudication before the Court of leaned 1st Additional District Judge, Jammu. 6. Thereafter the respondent filed an application under Order 6, Rule 17 of the CPC for the amendment of the plaint, in view of the subsequent events, which have taken place after the Judgment and decree dated 16th March, 2011 passed by the trial Court in case titled “Dr. V.K. Pachnanda vs. Reeta Anadi and Ors.” along with copy of amended suit for ejectment of the defendants from the above said premises. 7. The Court of 1 Additional District Judge, Jammu after hearing the arguments, decided the application vide order dated 3rd December, 2013, which is challenged by the petitioners on the following grounds: (i) That the application seeking amendment of the suit at the appellate stage was not maintainable as the suit had abated due to the death of plaintiff as the suit was filed by original appellant Late Dr. V.K. Pachnanda seeking eviction of the defendants (petitioners herein) from the suit premises on the ground of personal necessity and three defaults in the payment of rent. The personal necessity as projected in the suit by Late Dr. V.K. Pachnanda was to the extent that he was Orthopaedic Surgeon having retired from Government service, intended to reconstruct the whole area so as to construct a Nursing Home. The object of establishing a Nursing Home after reconstructing the whole area as projected by the Plaintiff Dr. V.K. Pachnanda was to establish his private practice and to have a permanent source of income and the same was not intended to serve any public purpose as has been projected by the applicant-appellant (respondent herein). The object of establishing a Nursing Home after reconstructing the whole area as projected by the Plaintiff Dr. V.K. Pachnanda was to establish his private practice and to have a permanent source of income and the same was not intended to serve any public purpose as has been projected by the applicant-appellant (respondent herein). It is averred that since the personal necessity projected in the suit by late Dr. V.K. Pachnanda was personal to him, as such, with his sad demise the so called bonafide requirement projected in the suit ceased to exist. It is further averred that since the cause of action on account of aforesaid necessity projected by late Dr. V.K. Pachnanda did not survive to the legal heirs, as such, the suit, in law stood abated. It is averred that the applicant-respondent if at all had a cause of action to file a fresh suit, was not entitled in law to seek the amendment of the suit and set up a new case than the one, which was set up in the plaint tried by the learned trial Court and eventually a Judgment and decree was passed. The legal consequence of the death of Late Dr. V.K. Pachnanda, who had claimed the eviction on the ground of his personal necessity, was that the suit had abated and no cause of action survived to the legal heirs. The amendment of the plaint that too at the appellate stage could not have been used as a substitution of filing a fresh suit on the basis of fresh cause of action if at all it had accrued to the respondent. The appellate Court has not appreciated the controversy raised in the said application and law on this subject in its proper perspective and as such, the order impugned suffers from grave illegality and impropriety, therefore, deserves to be set aside. (ii) That otherwise also the suit filed by Late Dr. V.K. Pachnanda was on twin grounds of personal necessity and three defaults in the payment of rent. Whereas, the suit was decreed on the ground of personal necessity, which ceased to exist with the death of the original plaintiff Dr. V.K. Pachnanda and the suit to that extent had abated. It is submitted that the plea of three defaults was not accepted by the learned trial Court against which the appeal is pending. Whereas, the suit was decreed on the ground of personal necessity, which ceased to exist with the death of the original plaintiff Dr. V.K. Pachnanda and the suit to that extent had abated. It is submitted that the plea of three defaults was not accepted by the learned trial Court against which the appeal is pending. Assuming though not admitting the application of the applicant-respondent was entitled to be allowed and plaint if amended accordingly, it would result in a piquant situation not countenanced by law. It is further submitted that even the cause of action to pursue the appeal on the ground of three defaults does not survive to the legal heir and the appeal filed by Late Dr. V.K. Pachnanda and continued by the applicant-respondent herein had abated. (iii) That otherwise also the amendment sought was not permissible under Order 6, Rule 17 as the same was not permissible under Order 6, Rule 17, as the same was not necessary for the purpose of determining the real questions in controversy between the parties. It is submitted that the real question in controversy between the parties in the suit was the personal necessity of late Dr. V.K. Pachnanda, who claiming to be an Orthopedic Surgeon of repute had desired to establish a Nursing Home for augmenting his income after his retirement and the question now sought to be projected by the amendment is different from the one projected in the suit originally filed by Late Dr. V.K. Pachnanda. (iv) That the learned court below while allowing the application, under Order 6, Rule 17 has completely ignored the fundamental principle of law that nobody can in the garb of amendment of suit, file a fresh suit, of which he may be entitled to on the basis of fresh cause of action having accrued to the plaintiff. It is further submitted that the respondent if at all was entitled to a decree of eviction on the ground of her personal necessity would have been entitled to file a fresh suit claiming the eviction of the petitioners on the ground of her personal necessity. Admittedly the suit filed by Dr. V.K. Pachnanda, was his own personal necessity and not the personal necessity of any other member of his family including the respondent. Admittedly the suit filed by Dr. V.K. Pachnanda, was his own personal necessity and not the personal necessity of any other member of his family including the respondent. It is further averred that the learned Court below has gone beyond the scope of provisions of Order 6, Rule 17 and has therefore, exercised the jurisdiction not vested in it and as a result whereof has caused serious miscarriage of justice, which needs to be undone by the exercise of supervisory jurisdiction of this Hon'ble Court vested in terms of Section 104 of the Constitution of Jammu and Kashmir. 8. Heard learned counsel for the parties, perused the records and considered the matter. 9. Learned counsel appearing for the petitioners submits that the application seeking amendment of the suit at the appellate stage was not maintainable, as the suit was filed by the original appellant late Dr. V.K. Pachnanda, seeking eviction of the defendants (petitioners herein) from the suit premises on the ground of personal necessity and three defaults in the payment of rent. The personal necessity, as projected in the suit by late Dr. V.K. Pachnanda was to the extent that he was Orthopaedic Surgeon having retired from Government service, intended to reconstruct the whole area, so as to construct a Nursing Home. After the death of plaintiff Dr. V.K. Panchnanda, the necessity projected in the suit was personal to him, as such, with his death the so called bonafide requirement projected in the suit ceased to exist. It is further submitted that the cause of action on account of aforesaid necessity projected by late Dr. V.K. Panchnanda did not survive to the legal heirs as such, the suit in law stood abated. It is further submitted that the suit filed by Dr. V.K. Pachnanda was on twin grounds of personal necessity and three defaults in the payment of rent, whereas, the suit was decreed on the grounds of personal necessity, which ceased to exist with the death of original plaintiff and the suit to that extent had abated. The plea of three defaults was not accepted by the learned trial Court, against which the appeal is pending. Learned counsel further submits that the amendment sought was not permissible under Order 6, Rule 17, as the same was not necessary for the purpose of determining the real questions in controversy between the parties. The plea of three defaults was not accepted by the learned trial Court, against which the appeal is pending. Learned counsel further submits that the amendment sought was not permissible under Order 6, Rule 17, as the same was not necessary for the purpose of determining the real questions in controversy between the parties. It is further averred that under the garb of amendment of suit, the learned appellate Court has allowed the respondent to file a fresh suit, which she may be entitled to on the basis of fresh cause of action having accrued to her. 10. Learned counsel for the respondent submits that the petition is not maintainable, as there is no infraction or violation of any statute. It is further submitted that the amendment allowed is permissible within the provisions of Order 6, Rule 17 of CPC. It is further submitted that nothing wrong has been done by the learned appellate Court, while allowing the application of the respondent, for seeking amendment. Respondent has questioned the maintainability of the writ petition also. 11. On merits, the Court of 1st Additional District Judge, Jammu, in terms of impugned order has ensured complete justice in the matter, by allowing application under Order 6, Rule 17, filed by the respondent-appellant for making certain amendments in the plaint on account of subsequent developments, which have taken place after the sad demise of her husband. 12. The enabling provision for amendment of the pleadings, Order 6, Rule 17 of CPC is comprised in two parts, first part empowers the Court, whereas the latter part ordains the Court to allow either party to alter or amend his pleadings in such a manner and on such terms, as may be, just for determining the real question in controversy between the parties. The amendment can be allowed at any stage including in appeal provided the necessary requirements are meant. While appreciating the contentions and submissions made by both sides, the learned Court below has gone through their basic pleadings which are discussed in the Judgment dated 03.12.2013 as under: “Respondent has sought the eviction of the appellant on twin grounds or requirement of suit premises for reconstruction of a Nursing Home and on ground of three defaults in the payment of rent. Respondent/plaintiff had averred in the suit that he had retired from Government service as Head of the Orthopaedic and was a wry competent surgeon and consultant and that he wanted to establish his own nursing home with complete operational facilities in the discipline of Orthopaedic to augment his income. That he had the necessary resources and had already applied for the necessary sanction from Municipal Authorities. It was clearly stated by the respondent/plaintiff that nursing home contemplated would be semi charitable and it would be beneficial for the public at large. Reverting back to the controversy sought to be set at rest, it is manifestly clear from the averments in the plaint as well as the application under adjudication that the nursing home proposed to be established was the deem project of the landlord who had retired from Government service as Head of the Department of Orthopaedic and as such, have contributed to a great deal is starting and establishing his dream project. With the demise of her husband, the applicant is at the loss of expertise in the field he was having in establishing such a unit. However, that cannot be accepted to have been lost since applicant as legal heir can always rather has taken it as her solemn responsibility to fulfil the dream of her husband and she has sufficient resources to establish such a Nursing Home though there cannot be any substitute for the able service of her Husband but she can always hire the services of the experts in the field as there is no dearth thereof. A project is like the one conceived by the husband of the applicant cannot be expected to be a one man show though a person of the standing of applicant's husband could have played a vital role in the smooth running of the nursing home but that would never mean that it could not be run at all without him. Moreover, it has been sought to be established to augment the income and as well as for charitable purposes. The augmentation of the income does not mean the individual income since it is always for the benefit of and is intended to improve the economic status of the family unit as a whole. Moreover, it has been sought to be established to augment the income and as well as for charitable purposes. The augmentation of the income does not mean the individual income since it is always for the benefit of and is intended to improve the economic status of the family unit as a whole. Therefore, neither the necessity nor the purpose behind establishing the Nursing Home is lost with the death of the individual landlord and his legal heirs who have the necessary resources at her command cannot be deprived of the right to carry on with the intended activity. Rather she has all the more reasons to meet the purpose for the sake of family as well as to fulfil the last wish of her husband. Therefore, the objections taken by the appellant/non-applicant that the necessity has gone and he suit abated with the death of the individual landlord does not hold good. Moreover, this aspect has already been dealt and overruled by the Court while bringing on record the legal heir on the demise of respondent/landlord. The amendment, sought would therefore, in my considered view would neither change the basic nature of the suit nor it would bring a new cause on record but are only explanatory in nature which would help the court in arriving at a just decision of the case. Moreover, the cross appeal has been filed by the respondent whereby the findings of the trial Court to the extent of nor allowing the ground of three defaults have been challenged.” 13. It is painful to notice that the present litigation is 22 years long without any settlement. Perusal of the records reveal that valuable time of the Courts has been unnecessarily consumed due to casual approach adopted by the parties to the lis as also sometimes by the Courts dealing with the matter. Even the present petition has remained pending before this Court for four long years unnecessarily, as the issue which is decided today regarding maintainability of the petition as also legality of the order impugned could have been decided on the first hearing when both the parties were present before the Court or at the most within a month or so but it has taken four years to this Court also to relieve the litigants from here again to approach the appellate Court. 14. 14. When asked both learned counsel for the parties, submit that the appellate Court has kept the matter pending as the petition was under decision of this Court. Court fails to understand as to why the appellate Court has stayed the proceedings when there was no interim order passed by this Court, nor the records were called. All what is required to be done, shall be done by the Appellate Court, now to settle the matter without any order to send the parties to trial court for whatever statements are required or pleading to be completed. 15. Coming to the question as to the maintainability of the petition, it is well settled now that the ambit of High Court's power of superintendence under Article 227 of the Constitution of India, which is pari materia with Section 104 of the Constitution of Jammu and Kashmir, is only to keep the Courts and Tribunals subordinate to the High Court within the bounds of their authority. Since I have come to the conclusion that the impugned order dated 3rd December, 2013, passed by the learned 1st Additional District Judge, Jammu in appeal titled Dr. V.K. Pachnanda vs. Smt. Reeta Anadi and Others is within the bounds of authority and powers of the learned 1st Additional District Judge, Jammu, no interference is warranted by this Court in exercise of its power of superintendence in terms of Section 104 of the Constitution of Jammu and Kashmir. Reference in this connection may be made to the decision of the Supreme Court in Shalini Shayam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 . 16. Scanning and examining the impugned order in totality, there is no illegality or infirmity in the order. The order is well reasoned and ensuring complete justice between the parties. Needless to mention that while allowing the application, the court has to ensure complete justice between the parties and while ensuring the same, the impugned order does not decided the rights of the parties but only enables to address the issue raised during the pendency of the appeals. With these observations and findings, the petition is disposed of together with connected MP, with the direction to the appellate court to allow the parties to complete the pleadings post amendment and decide the matter within a period of three months from the date copy of the order is received. 17. With these observations and findings, the petition is disposed of together with connected MP, with the direction to the appellate court to allow the parties to complete the pleadings post amendment and decide the matter within a period of three months from the date copy of the order is received. 17. Be that as it may, since the petition has been decided but while deciding the petition, Court cannot lose the sight of issuing directions to the appellate Court to do substantial justice by fast-tracking the proceedings so as to ensure that the parties to the lis are relieved at an earliest and not later than three months from the next date. 18. Unnecessary pendency of the matter before learned 1st Additional District Judge, Jammu, noticed by the Court forms a ground for transfer of the appeals to the Court of Principal District Judge, Jammu, who shall abide by the directions passed by this Court and conclude the proceedings in terms of provisions of Civil Procedure Code within the time granted. The parties shall appear before the transferee Court on 24.02.2018. 19. Registry to send down copy of the order to Court of 1st Additional District Judge, Jammu, who shall forthwith submit the files to the Court of Principal District Judge, Jammu, for disposal.