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2019 DIGILAW 1376 (HP)

Nanak Ram @ Nanak Chand v. Anant Ram

2019-09-12

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioners, against the order dated 05.04.2016, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in CMA No. 39-6 of 2016, in Civil Appeal No. 9/13/2011, whereby the application filed by the petitioners/plaintiffs (hereinafter to be called as "the plaintiffs"), under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was dismissed. 2. Briefly stating the facts, giving rise to the present petition are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the respondents/defendants (hereinafter to be called as "the defendants"), which was dismissed by learned trial Court vide judgment and decree dated 28.03.2011. Feeling aggrieved, the plaintiffs has maintained an appeal before the learned first Appellate Court, which is pending adjudication. During the pendency of first appeal, an application under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was maintained by the plaintiffs. In the said application, it has been averred that during the pendency of the suit, vide order dated 19.02.2000, passed by A.C. 1st Grade, Ghumarwin, District Bilaspur, H.P., the suit land stood partitioned. On 01.01.2008, possession stood delivered and rapat rojnamcha was entered and since the subject matter of the suit has entirely been changed and as the share of plaintiffs, which was 13 biswas has been merged in the share of respondent No. 1, therefore, the amendment is necessary, hence, the plaintiffs prayed for amendment in the plaint as detailed in paras 6 to 10 of the application. 3. The application so filed by the plaintiffs was resisted by filing reply, wherein preliminary objections qua maintainability etc, were taken. On merits, it has been averred that Jiuni Devi had not executed any Will in favour of the persons named in para 4 of the application. It has been further averred that the mutation with respect to the property of Jiuni Devi had been sanctioned and the same was in the knowledge of the plaintiffs, who had accepted it and since the mutation on the basis of inheritance of Juini Devi was correct, the plaintiffs had rightly accepted the partition proceedings. It has been further averred that the mutation with respect to the property of Jiuni Devi had been sanctioned and the same was in the knowledge of the plaintiffs, who had accepted it and since the mutation on the basis of inheritance of Juini Devi was correct, the plaintiffs had rightly accepted the partition proceedings. All the co-sharers were in possession as per the delivery of possession and as per the partition order. Lastly, it has been averred that the proposed amendment could not be permitted at this belated stage and dismissal of the application has been prayed. 4. Mr. Ashwani K. Sharma, learned Senior Counsel appearing on behalf of the petitioners has argued that the amendment was not allowed by learned lower Appellate Court simply on the ground that it was moved after a long time. He has further argued that for proper adjudication of the case, the amendment should have been allowed, since after partition proceedings, amendment was necessitated. 5. On the other hand, Mr. Ajay Thakur, learned vice counsel appearing on behalf of the respondents has argued that the amendment was moved after a long time, which was required to be dismissed and was accordingly dismissed by learned lower Appellate Court. He has further argued that even the partition proceedings were finalized in the year 2012 and the application seeking amendment was filed in the year 2015, at much belated stage. 6. In rebuttal, Mr. Ashwani K. Sharma, learned Senior Advocate has placed strong reliance upon the decision rendered by Hon'ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 and argued that the impugned order, passed by learned lower Appellate Court be set aside and application seeking amendment in the plaint may be allowed. 7. To appreciate the arguments of learned counsel for the parties, I have gone through the entire record in detail. 8. As per the plaintiffs, since the land has now been partitioned, the amendment is required to be allowed by substituted words in the suit, i.e. entire suit land measuring 25-1 bighas comprised in Khasra No. Kitta-6, No. Khata/Khatoni 33/40 situated in Village Palthin, Pargna Tiun, Tehsil Ghumarwin, Distt. 8. As per the plaintiffs, since the land has now been partitioned, the amendment is required to be allowed by substituted words in the suit, i.e. entire suit land measuring 25-1 bighas comprised in Khasra No. Kitta-6, No. Khata/Khatoni 33/40 situated in Village Palthin, Pargna Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. be added with the words "the plaintiffs have inherited 13/213 share in the land measuring 0.18 bighas comprised in Khasra No. 161/1, land measuring 08 bighas comprised in Khasra No. 161/2, land measuring 1-16 bighas comprised in Khasra No. 180/3, land measuring 0.8 bighas comprised in Khasra No. 180/6, land measuring 2.5 bighas comprised in Khasra No. 185, land measuring 2.10 bighas comprised in Khasra No. 205/3, land measuring 0.13 bighas comprised in Khasra No. 228/1/1 and land measuring 1.15 bighas situated in Khasra No. 234, kitta-8, total land measuring 10-13 bighas situated in Village Palthin, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P., which has been allotted during the pendency of the suit in the name share of defendant No. 1 and share of Smt. Jiuni Devi, inherited by the plaintiffs." 9. The plaintiffs have not mentioned in the plaint whether the suit land measuring 25-1 bighas, comprised in Khasra No. Kitta-6 No. Khata/Khatoni 33/40 is situated in Khasra No. 161 or not. They have not mentioned Khasra number while making submissions for amendment in the plaint. At the same point of time, the case of the defendants was that all the co-sharers are in possession, which has been accepted by the plaintiffs at the time of delivery of possession and which is also as per the partition order. The alleged Will is neither proved on record nor the same has seen the day of light during the pendency of the partition proceedings. The parties are in possession over their respective shares, which had been determined in the partition proceedings as well as by the learned Court, in fact, the plaintiffs are knowing the fate of appeal and they have filed this application with the ulterior motive to prolong the proceedings of the case and by pressed the legal heirs of late Sh. Anant Ram for compromise. Since the revenue entries are correct, no change, as prayed for, is required. 10. Anant Ram for compromise. Since the revenue entries are correct, no change, as prayed for, is required. 10. This fact goes to show that the plaintiffs have not disclosed with respect to khasra number of 25 bighas of land that whether it is the same or not, in these circumstances, the amendment cannot said to be necessitated, as the parties are in their settled possession as per the defendants. The partition proceedings were finalized in the year 2012 and the application was moved in the year 2015, which also shows that the plaintiffs were sleeping over the matter for three years and the view taken by learned lower Appellate Court that the amendment was for delaying the proceedings, cannot said to be erroneous. The appeal was pending since 2011 and the plaintiffs have only chosen to file the application in the year 2015, in these circumstances also this Court finds that the plaintiffs are not entitled for allowing the amendment in the plaint. 11. The Hon'ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 has held as under: "5. As noted hereinafter, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. 6. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. 6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pilllai.) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed. 7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. 8. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs. 10,000 to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs. 10,000 to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected." However, the facts of the cited case are totally different from the facts of the present case, as in the present case the suit was filed, which was decided thereafter appeal was filed in the year 2011, before the learned first Appellate Court and in the year 2015, the application for amendment was moved and that too without mentioning the khasra numbers purposely. So, this Court finds that the amendment sought for is not necessary for adjudication of the case, as it was definitely moved after a long time and just to prolong the case. 12. The net result of the above discussion is that the present petition is devoid of merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of. Parties to appear before the learned Court below on 30.09.2019. JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioners, against the order dated 05.04.2016, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in CMA No. 39-6 of 2016, in Civil Appeal No. 9/13/2011, whereby the application filed by the petitioners/plaintiffs (hereinafter to be called as "the plaintiffs"), under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was dismissed. 2. Briefly stating the facts, giving rise to the present petition are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the respondents/defendants (hereinafter to be called as "the defendants"), which was dismissed by learned trial Court vide judgment and decree dated 28.03.2011. Feeling aggrieved, the plaintiffs has maintained an appeal before the learned first Appellate Court, which is pending adjudication. During the pendency of first appeal, an application under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was maintained by the plaintiffs. Feeling aggrieved, the plaintiffs has maintained an appeal before the learned first Appellate Court, which is pending adjudication. During the pendency of first appeal, an application under Order 6, Rule 17, read with Section 151 of the Code of Civil Procedure, seeking amendment in the plaint was maintained by the plaintiffs. In the said application, it has been averred that during the pendency of the suit, vide order dated 19.02.2000, passed by A.C. 1st Grade, Ghumarwin, District Bilaspur, H.P., the suit land stood partitioned. On 01.01.2008, possession stood delivered and rapat rojnamcha was entered and since the subject matter of the suit has entirely been changed and as the share of plaintiffs, which was 13 biswas has been merged in the share of respondent No. 1, therefore, the amendment is necessary, hence, the plaintiffs prayed for amendment in the plaint as detailed in paras 6 to 10 of the application. 3. The application so filed by the plaintiffs was resisted by filing reply, wherein preliminary objections qua maintainability etc, were taken. On merits, it has been averred that Jiuni Devi had not executed any Will in favour of the persons named in para 4 of the application. It has been further averred that the mutation with respect to the property of Jiuni Devi had been sanctioned and the same was in the knowledge of the plaintiffs, who had accepted it and since the mutation on the basis of inheritance of Juini Devi was correct, the plaintiffs had rightly accepted the partition proceedings. All the co-sharers were in possession as per the delivery of possession and as per the partition order. Lastly, it has been averred that the proposed amendment could not be permitted at this belated stage and dismissal of the application has been prayed. 4. Mr. Ashwani K. Sharma, learned Senior Counsel appearing on behalf of the petitioners has argued that the amendment was not allowed by learned lower Appellate Court simply on the ground that it was moved after a long time. He has further argued that for proper adjudication of the case, the amendment should have been allowed, since after partition proceedings, amendment was necessitated. 5. On the other hand, Mr. He has further argued that for proper adjudication of the case, the amendment should have been allowed, since after partition proceedings, amendment was necessitated. 5. On the other hand, Mr. Ajay Thakur, learned vice counsel appearing on behalf of the respondents has argued that the amendment was moved after a long time, which was required to be dismissed and was accordingly dismissed by learned lower Appellate Court. He has further argued that even the partition proceedings were finalized in the year 2012 and the application seeking amendment was filed in the year 2015, at much belated stage. 6. In rebuttal, Mr. Ashwani K. Sharma, learned Senior Advocate has placed strong reliance upon the decision rendered by Hon'ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 and argued that the impugned order, passed by learned lower Appellate Court be set aside and application seeking amendment in the plaint may be allowed. 7. To appreciate the arguments of learned counsel for the parties, I have gone through the entire record in detail. 8. As per the plaintiffs, since the land has now been partitioned, the amendment is required to be allowed by substituted words in the suit, i.e. entire suit land measuring 25-1 bighas comprised in Khasra No. Kitta-6, No. Khata/Khatoni 33/40 situated in Village Palthin, Pargna Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. be added with the words "the plaintiffs have inherited 13/213 share in the land measuring 0.18 bighas comprised in Khasra No. 161/1, land measuring 08 bighas comprised in Khasra No. 161/2, land measuring 1-16 bighas comprised in Khasra No. 180/3, land measuring 0.8 bighas comprised in Khasra No. 180/6, land measuring 2.5 bighas comprised in Khasra No. 185, land measuring 2.10 bighas comprised in Khasra No. 205/3, land measuring 0.13 bighas comprised in Khasra No. 228/1/1 and land measuring 1.15 bighas situated in Khasra No. 234, kitta-8, total land measuring 10-13 bighas situated in Village Palthin, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P., which has been allotted during the pendency of the suit in the name share of defendant No. 1 and share of Smt. Jiuni Devi, inherited by the plaintiffs." 9. The plaintiffs have not mentioned in the plaint whether the suit land measuring 25-1 bighas, comprised in Khasra No. Kitta-6 No. Khata/Khatoni 33/40 is situated in Khasra No. 161 or not. The plaintiffs have not mentioned in the plaint whether the suit land measuring 25-1 bighas, comprised in Khasra No. Kitta-6 No. Khata/Khatoni 33/40 is situated in Khasra No. 161 or not. They have not mentioned Khasra number while making submissions for amendment in the plaint. At the same point of time, the case of the defendants was that all the co-sharers are in possession, which has been accepted by the plaintiffs at the time of delivery of possession and which is also as per the partition order. The alleged Will is neither proved on record nor the same has seen the day of light during the pendency of the partition proceedings. The parties are in possession over their respective shares, which had been determined in the partition proceedings as well as by the learned Court, in fact, the plaintiffs are knowing the fate of appeal and they have filed this application with the ulterior motive to prolong the proceedings of the case and by pressed the legal heirs of late Sh. Anant Ram for compromise. Since the revenue entries are correct, no change, as prayed for, is required. 10. This fact goes to show that the plaintiffs have not disclosed with respect to khasra number of 25 bighas of land that whether it is the same or not, in these circumstances, the amendment cannot said to be necessitated, as the parties are in their settled possession as per the defendants. The partition proceedings were finalized in the year 2012 and the application was moved in the year 2015, which also shows that the plaintiffs were sleeping over the matter for three years and the view taken by learned lower Appellate Court that the amendment was for delaying the proceedings, cannot said to be erroneous. The appeal was pending since 2011 and the plaintiffs have only chosen to file the application in the year 2015, in these circumstances also this Court finds that the plaintiffs are not entitled for allowing the amendment in the plaint. 11. The Hon'ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 has held as under: "5. As noted hereinafter, the prayer for amendment was refused by the High Court on two grounds. 11. The Hon'ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 has held as under: "5. As noted hereinafter, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. 6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pilllai.) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed. 7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. 8. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs. 10,000 to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected." However, the facts of the cited case are totally different from the facts of the present case, as in the present case the suit was filed, which was decided thereafter appeal was filed in the year 2011, before the learned first Appellate Court and in the year 2015, the application for amendment was moved and that too without mentioning the khasra numbers purposely. So, this Court finds that the amendment sought for is not necessary for adjudication of the case, as it was definitely moved after a long time and just to prolong the case. 12. The net result of the above discussion is that the present petition is devoid of merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of. Parties to appear before the learned Court below on 30.09.2019.