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2021 DIGILAW 403 (MP)

Sobaran Singh v. Vijay Singh (dead) through LRS.

2021-03-24

G.S.AHLUWALIA

body2021
ORDER 1. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 27.2.2019 passed by Second Civil Judge Class-II, Gwalior in Civil Suit No.125A/2016 by which the application filed by the petitioner under Order 6 Rule 17 of CPC has been rejected. 2. The necessary facts for disposal of the present petition in short are that the petitioner filed a suit for declaration of title and permanent injunction on the allegation that the petitioner is the owner and is in possession of survey No.548 area 2.15 Beegha, survey No.553 area 2 Beegha, survey No.554 area 4 Beegha and survey No.555 area 8 Biswa situated in village Purasani, Tehsil and District Gwalior. 3. It is the case of the petitioner that the land in question is an ancestral land and earlier it was recorded in the name of the father of the petitioner. After the death of his father, the petitioner and his brother Kartar Singh became the joint owner of the property and, accordingly, their names were recorded in the revenue record in place of their father late Hukum Singh. Kartar Singh expired on 31.7.2003 and he was unmarried accordingly, it was claimed that the petitioner has become the sole owner of the property in question after the death of his brother late Kartar Singh. Accordingly, the name of the petitioner was mutated in the revenue records in respect of the entire property in dispute. 4. It the case of the petitioner that since the respondent No.1 Vijay Singh (the respondent No.1a to e, are the legal heirs of Vijay Singh) was intending to grab the property, therefore, he prepared a forged agreement purportedly executed by his brother late Kartar Singh and on the basis of the said forged agreement to sell, he filed an application before the Tahsildar, Gwalior for recording of his name on the basis of the possession. The said application was objected by the petitioner and, accordingly, it was dismissed by order dated 7.7.1999 passed in Case No.153/98-99/B-121. Thereafter, the respondent preferred an appeal before SDO, Gwalior and the appeal was allowed and the matter was remanded back to the Court of Tehsildar with a direction to decide afresh after giving an opportunity of hearing. The said application was objected by the petitioner and, accordingly, it was dismissed by order dated 7.7.1999 passed in Case No.153/98-99/B-121. Thereafter, the respondent preferred an appeal before SDO, Gwalior and the appeal was allowed and the matter was remanded back to the Court of Tehsildar with a direction to decide afresh after giving an opportunity of hearing. Thereafter, by order dated 13.2.2012 the Tehsildar once again held that the petitioner is the solitary owner of the property and the respondent No.1 has failed to prove the “Will” purportedly executed by late Kartar Singh. It was also observed that earlier in the application which was filed by the respondent No.1 for recording of his name on the basis of possession, he had not referred to the “Will” executed by late Kartar Singh. On the contrary, the application was preferred on the ground of an agreement purportedly executed by late Kartar Singh. It was alleged that the respondent No.1 preferred an appeal before the SDO, Gwalior and also filed a suit for declaration of his title. The appeal filed by the respondent No.1 was rejected by SDO, Gwalior by mentioning that since the respondent No.1 has filed a civil suit and by order dated 23.7.2012, an interim order has been passed, therefore, the appeal was dismissed. Thereafter, the respondent No.1 in the suit filed by him, filed an application under Order 23 Rule 1 of CPC which was rejected by order dated 5.1.2016. It is alleged that the respondent No.1 thereafter filed an application for review of order dated 31.10.2012 passed by the SDO, Gwalior and the said review has been allowed by the SDO by order dated 30.6.2015 and the name of the respondent No.1 has been directed to be mutated in place of late Kartar Singh. It was further pleaded that the petitioner has already preferred an appeal against the order of SDO, Gwalior before the Additional Commissioner, Gwalior Division, Gwalior which was registered as Appeal No.407/14-15/Appeal and by order dated 6.1.2016 the appeal was dismissed on the ground that the appeal would lie before the Collector, Gwalior. Accordingly, the petitioner has preferred an appeal before the Collector, Gwalior which is pending. 5. It is the case of the petitioner that his brother late Kartar Singh had neither executed any “Will” nor the respondent No.1 has any right, title or possession over the land in dispute. Accordingly, the petitioner has preferred an appeal before the Collector, Gwalior which is pending. 5. It is the case of the petitioner that his brother late Kartar Singh had neither executed any “Will” nor the respondent No.1 has any right, title or possession over the land in dispute. The “Will” so relied upon by the respondent No.1 is a forged document and, accordingly, the suit was filed for declaration of title and permanent injunction. 6. The written statement was filed and the trial Court framed issues. 7. Thereafter, on 6.12.2018 the petitioner filed his affidavit under Order 18 rule 4 of CPC. Before the petitioner could be crossexamined, he preferred an application under Order 6 rule 17 of IPC just after 11 days of filing his affidavit under Order 18 rule 4 of CPC pleading that by inadvertent mistake, the petitioner had failed to mention survey No.673 area 2.4 Beegha, survey No.556/1 area 2.5 Beegha and survey No.515/2 area 12 Biswa in the plaint and, therefore, the petitioner may be permitted to amend the plaint. 8. The application was vehemently opposed by the respondent No.1. 9. The trial Court by the impugned order dated 27.2.2019 has rejected the application on the ground that the petitioner has not pleaded that in spite of “due diligence” he could not mention the survey numbers in the plaint. 10. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that undisputed facts are that on 6.12.2018 the case was fixed for the first time for examination of plaintiff witness and on the said date, affidavit of the plaintiff under Order 18 rule 4 of CPC was filed and just 11 days thereafter the application under Order 6 rule 17 of CPC was filed. The examination of the petitioner has not begun. The Supreme Court in the case of Varun Pahwa v. Mrs. Renu Chaudhary by order dated 1.3.2019 passed in Civil Appeal No.2431/2019 has held that in case of inadvertent mistake, the Trial Court should adopt lenient view and the procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Supreme Court in the case of Varun Pahwa v. Mrs. Renu Chaudhary by order dated 1.3.2019 passed in Civil Appeal No.2431/2019 has held that in case of inadvertent mistake, the Trial Court should adopt lenient view and the procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. It is submitted that the plaint was drafted by his counsel and because of inadvertent mistake on the part of the counsel, some of survey numbers could not be mentioned in the plaint and since the suit is at the initial stage, although the trial has commenced, the Trial Court should not have dismissed the application. 11. Per contra, it is submitted by the counsel for the respondent that so far as survey No.673 mentioned in the application for amendment is concerned, the respondent No.1 has no concern with said piece of land. It is further submitted that the petitioner has failed to make out a case that inspite of “due diligence” the amendment could not be filed at the earliest possible stage. The Trial has commenced and the case is already fixed for recording of plaintiff evidence. 12. Heard the learned counsel for the parties. 13. The undisputed fact is that for the first time the case was listed on 6.12.2018 for recording of plaintiff evidence and on the very same day, an affidavit under Order 18 rule 4 of CPC was filed by the petitioner but he has not been examined so far and just 11 days thereafter the application under Order 6 Rule 17 of CPC was filed. 14. The Supreme Court in the case of Varun Pahwa (supra), has held as under : 10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another 5 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under :- “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. The Court held as under :- “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The wellrecognised exceptions to this principle are : (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” 11. Thus, we find that it was an inadvertent mistake in the plaint which trial Court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. 15. It is the case of the petitioner that by inadvertent mistake, some of the survey numbers could not be mentioned in the complaint. It is the case of the plaintiff that being the legal heir of his brother late Kartar Singh, he has inherited the share of his brother late Kartar Singh whereas it is the case of the petitioner that late Kartar Singh has executed a “Will” in his favour. 16. Be that whatever it may. 17. This Court in the case of Smt. Ramkali v. Banmali and another by order dated 17.2.2021 passed in W.P.No.6695/2013 has held that the revenue Court have no jurisdiction to adjudicate the genuineness and correctness of “Will” executed by testator. 16. Be that whatever it may. 17. This Court in the case of Smt. Ramkali v. Banmali and another by order dated 17.2.2021 passed in W.P.No.6695/2013 has held that the revenue Court have no jurisdiction to adjudicate the genuineness and correctness of “Will” executed by testator. Accordingly, it is held that for the adjudication of the litigation for once and all, the trial Court should have allowed the application filed under Order 6 rule 17 of CPC specifically when the case is still at the initial stage and within 11 days from the date on which the case was fixed for recording of plaintiff witness for the first time, the application under Order 6 rule 17 of CPC was filed. 18. It is not the case of the parties that the application under Order 6 rule 17 of CPC was filed belatedly. Under these circumstances, the order dated 27.2.2019 passed by Second Civil Judge Class-II, Gwalior in Civil Suit No.125A/2016 is hereby set aside. The application filed by the petitioner under Order 6 rule 17 of CPC is hereby allowed. The petitioner is directed to incorporate the amendment within a period so fixed by the trial Court. The respondent No.1 is granted liberty to file an application for consequential amendment in the written statement. 19. With aforesaid observations, this petition is allowed. 20. No order as to costs.