Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 632 (HP)

JEET RAM v. AMAR NATH

2020-09-22

TARLOK SINGH CHAUHAN

body2020
JUDGMENT : Tarlok Singh Chauhan, J. 1. Aggrieved by the order, dated 14.12.2017, passed by the learned first appellate court, whereby application of the plaintiffs/petitioners for amendment of the plaint under Order 6 Rule 17 CPC has been rejected, the plaintiffs/petitioners have filed the instant revision petition. The parties shall be referred to as the "plaintiffs" and "defendants". 2. The plaintiffs filed a suit for permanent prohibitory injunction restraining the defendants/respondents from causing any interference in the suit land denoted by Khewat No. 32min, Khatauni No.92, Khasra Nos. 92 and 97, Kitas-2, measuring 0-18-12 hectares and the land denoted by Khewat No. 33, Khatauni No.93 min, Khasra No. 45, measuring 0-29-85 hectares, situated in Chak Basa Mahog, Tehsil Theog, District Shimla on the allegation that they have purchased the suit land. 3. The defendants contested the suit by filing written statement as also counter claim, wherein it was claimed that they were in continuous, peaceful and uninterrupted use and occupation of the land/apple orchard including Khasra Nos.9, 19, 45, 92 and 97 for the last more than 23 years and sought, by way of counter claim, declaration of ownership qua the aforesaid Khasra numbers. 4. It needs to be noticed here that the specific case of the plaintiffs is that they were in possession of the suit land, however, while filing written statement to the counter claim, it was averred that if during the pendency of the suit, the counter claimants enter into the possession of the suit land forcibly or at the time of the final disposal of the case and the counter claimants were found in possession of the suit land, the same would be without right, title and interest, therefore, in the alternative, decree of possession be passed in favour of the plaintiffs. 5. The learned trial court on 28.3.2008 framed as many as 13 issues, out of which, issue No. 12 reads as under:- "12. Whether in alternative if the defendants are found in the possession of suit land without any right, title and interest, then, the plaintiffs are entitled for the decree of possession qua the suit land. OPP" 6. The learned trial court after recording the evidence and evaluating the same, vide judgment and decree dated 31.3.2012 decreed the suit of the plaintiffs for alternative prayer of possession and they were directed to affix the court fee on the market value of Rs. OPP" 6. The learned trial court after recording the evidence and evaluating the same, vide judgment and decree dated 31.3.2012 decreed the suit of the plaintiffs for alternative prayer of possession and they were directed to affix the court fee on the market value of Rs. 2,20,000/- of the land comprised in Khewat No. 32min, Khatauni No.92, Khasra Nos.92 and 97, Kitas-2, measuring 0-18-12 hectares and the land comprised in Khewat No. 33, Khatauni No.93, Khasra No. 45, measuring 0-29-85 hectares, within 30 days, failing which copy of the judgment was ordered to be sent to the Collector, Theog, for realization of Court fees as arrears of rent, whereas counter claim of the defendants for declaration was dismissed qua entire suit land. However, defendant Rama Nand was found to be in possession over Khasra Nos.9 and 19 and since no relief was claimed by the plaintiffs qua these Khasra numbers, therefore, by way of consequential relief, the plaintiffs were restrained from interfering in the possession of defendant Rama Nand over Khasra Nos. 9 and 19, unless and until, he was evicted in accordance with law. 7. Aggrieved by the judgment dated 31.3.2012, the defendants filed an appeal before the learned first appellate court, however during the pendency of the appeal, the plaintiffs filed an application under Order 6 Rule 17 CPC for amendment of the plaint, wherein they prayed for decree of possession. 8. As usual, the application was contested by the defendants, by filing reply, wherein it was averred that the same could not be allowed being not maintainable as it had been filed not only after trial was over, but in the first appellate court. 9. The learned trial court vide impugned order dated 14.12.2017 dismissed the application by agreeing with the contention of the defendants and held that since the application for amendment of the plaint had been preferred after the commencement of the trial, therefore, the same was not maintainable. 10. It shall be apposite here to refer to the relevant observations, as contained in para 11 of the impugned order, which read as under: "11. 10. It shall be apposite here to refer to the relevant observations, as contained in para 11 of the impugned order, which read as under: "11. After going through the content of application and the reply filed by both the parties, it is pertinent to mention that as per the contents of application under order 6 Rule 17 CPC the plaintiffs/applicants had instituted a suit seeking injunction against the non applicant with the clear assertion via facts as well as through the plaintiffs evidence that the applicants are in possession without any indication qua loosing of possession to the non-applicants. As per the contents of application filed by the applicant he has nowhere mentioned that when he was dispossessed during the pendency of the present suit, during the trial no application was filed by the applicant to amend his plaint. The trial in the present case has commenced, after the commencement of the trial no application was filed by the applicant to amend his plaint. The present application has been filed by the applicant at the fag end of an appeal filed by the appellants/non-applicants at the stage of arguments. As per the contents of application, there is nothing on record to prove that the present application has been filed after due diligence. No reason has been assigned why the present application has been filed at an appellate stage at the time of arguments of the final appeal. As per the contents of application, the applicants/plaintiffs failed to convince this court that in spite of due diligence, he/they could not have raised the matter before the commencement of trial." 11. I have heard the learned counsel for the parties and have also gone through the records of the case. 12. At the outset, it needs to be observed that the learned trial court appears to have been totally oblivious to the object of the amendment to Order 6 Rule 17 CPC as introduced in 2002 or else, it would not have proceeded to reject the application for amendment of the plaint. 13. The parties had sufficient knowledge of each other's case and the defendants very well knew that in case the plaintiffs are held to be out of possession, even then a decree of possession could be passed in their favour as per issue No. 12. 14. 13. The parties had sufficient knowledge of each other's case and the defendants very well knew that in case the plaintiffs are held to be out of possession, even then a decree of possession could be passed in their favour as per issue No. 12. 14. That apart, the defendants at no stage questioned framing of issues and onus thereof and after issue No. 12 had been framed, they could not be heard to say that they had been taken by surprise in case the amendment is allowed. 15. It is no longer res Integra that the entire object of the amendment to Order 6 Rule 17 CPC as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, avoid surprises and the plaintiff has sufficient knowledge of each others case. 16. This was so held by the Hon'ble Supreme Court in J. Samuel and ors. vs. Gattu Mahesh and ors., (2012) 2 SCC 300 , wherein it was held as under:- "23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications, [vide Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC 534 , Ajendraprasadji N. Pandey and Another vs. Swami Keshavprakeshdasji N. and Others, Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117 , Rajkumar Guraward (dead) through LRs. vs. S.K. Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364 , Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 , Man Kaur (dead) By LRs. vs. Hartar Singh Sangha, (2010) 10 SCC 512 ." 17. vs. S.K. Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364 , Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 , Man Kaur (dead) By LRs. vs. Hartar Singh Sangha, (2010) 10 SCC 512 ." 17. In view of aforesaid exposition of law, the application for amendment of the plaint could not have been dismissed solely on the ground that the same was belated, especially when the defendants very well knew about case of the plaintiffs and were not taken by surprise. 18. As a result of the aforesaid discussion, I find merit in the instant petition and the same is accordingly allowed. Consequently, the impugned order dated 14.12.2017 is quashed and set aside and the amendment as proposed is allowed. 19. Before parting, it needs to be clarified that even though the petition has been allowed, yet it would be for the plaintiffs to establish their case in entirety regarding their possession strictly in accordance with the pleadings in the plaint as also in the written statement to the counter claim. 20. It is made clear that the observations made here- in-above shall have no bearing on the merits of the case. 21. Pending application(s), if any also stands disposed of. The parties are left to bear their own costs.