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2021 DIGILAW 723 (UTT)

RADHEY SHYAM v. SAROJ DEVI

2021-12-17

S.K.MISHRA

body2021
JUDGMENT Sri S.K. Mishra, J. 1. Heard Mr. Sunil Upadhyaya, the learned counsel for the petitioner and Mr. Dharmendra Barthwal, the learned counsel for the respondents. 2. The writ petition has been filed by one Radhey Shyam, who was plaintiff in Suit No. 64 of 2012 and respondent in Civil Appeal No. 38 of 2016 wherein he has also preferred cross objection, assailing the order dated 14.09.2018, passed by the learned 2nd Addl. District Judge, Kashipur, District Udham Singh Nagar, rejecting his application under Order 6 Rule 17 of the Code of Civil Procedure, 1908, (hereinafter referred to as the Code) for amendment of the plaint. 3. The facts of the case at this stage are not disputed. One Ramratan @ Ratanlal, who was the father of present petitioner and his widow have four children, namely, Kusum, Anita, Radhey Shyam (present petitioner) and Suresh Chandra and his wife, namely, Smt. Saroj Devi. Kasturi Devi executed a sale deed, transferred entire property in favour of her daughter-in-law, namely, Saroj Devi. The said sale deed was challenged by the petitioner as plaintiff before the learned Civil Judge (Sr. Div.) Kashipur, District Udham Singh Nagar. The suit was decreed in part. Respondent Saroj Devi preferred an appeal before the learned Addl. District Judge, Kashipur, which has been registered as Civil Appeal No. 38 of 2016 wherein the present petitioner preferred cross objection. During the pendency of the appeal, he filed an application under Order 6 Rule 17 of the Code for amendment of the plaint to incorporate that the land in question was purchased by his grandfather Chajju Singh @ Chajjumal (father of late Ratanlal and father in law of Kasturi Devi). Hence, the said property is the ancestral property of the parties. Such application was rejected by the learned 2nd Addl. District Judge, Kashipur. 4. The petitioner stated that the amendment application was filed only to bring to the notice of the court that the disputed house is a joint Hindu family property and the document dated 29.03.1952 executed in favour of Chajju Singh, would conclusively establish that the property was the ancestral property wherein Kasturi Devi has no absolute right to transfer the entire property in favour of wife of one of her son. The learned counsel would contend that such document was not in his knowledge and it come to light after disposal of the suit by the learned Civil Judge (Sr. Div.), Kashipur. The learned counsel further submitted that such amendment is necessary for effective and proper adjudication of the vital issue to suit i.e., whether suit property is the ancestral property of the parties and whether Kasturi Devi alone has competence to sale this property in favour of any person without consent of other co-sharer/coparceners. 5. Mr. Dharmendra Barthwal, the learned counsel for the respondents would vehemently argue that the petition is guilty of laches and deliberate delay and that the such petition should not be allowed in view of the fact that there is no averment in the petition that such document was not in his knowledge even after exercising due diligence. 6. Having heard the learned counsel for the parties, this Court is of the opinion that whether the property in question is a part and parcel of the ancestral/joint Hindu family property is the most vital issue to be decided in this case and in such situation the document i.e. registered sale deed dated 29.03.1952 is a very vital and valuable piece of evidence which will shed light for a conclusively adjudication of the issue concerned. Hence, this Court comes to the conclusion that such amendment is necessary for the proper adjudication of the issues. 7. As far as delay is concerned, this Court is not satisfied that the delay caused by the petitioner in preferring the amendment petition is deliberate, as there is no material on record to show that it was a deliberate ploy on the part of the petitioner to file application late. There is no other material to come to the conclusion that petitioner has deliberately acted in mala fide manner and filed application for amendment in a late only with ulterior motive. It is also a settled principle of law that malafide has to be pleaded and proved whereas bona fide is presumed. In this case malafide, neither been pleaded by the opposite party/respondent nor it has been proved. It is also a settled principle of law that malafide has to be pleaded and proved whereas bona fide is presumed. In this case malafide, neither been pleaded by the opposite party/respondent nor it has been proved. So, this Court at the stage of final disposal of the writ petition comes to the conclusion that there is no mala fide on the part of the petitioner, prima facie, to come to the conclusion that he has filed the application deliberately after substantial lapse of time. Moreover, whenever, there is a question relating to preference to be given to substantive justice or the procedural law then substantive justice should be upheld by the court than adhering to procedural law to defeat the cause of justice. Procedural law is the handmaid of substantive justice and whenever there is conflict between two, this Court has always upheld substantive justice to be given more weightage than the procedural law. Moreover, Courts are required to decide the substantial questions of both fact and law involved in the case then to hide behind procedural law to defeat cause of justice. 8. In that view of the matter, the writ application is allowed. Order dated 14.09.2018, passed by 2nd Addl. District Judge, Kashipur, District Udham Singh Nagar, is hereby set aside. The amendment application 33C filed in civil appeal no. 38 of 2016 is hereby allowed. The petitioner is allowed to file a suitably amended plaint along with the annexures i.e. sale deed of the year 1952 before the learned 2nd Addl. District Judge, Kashipur, with a prayer to admit the documents as additional evidence. The learned 2nd Addl. District Judge, Kashipur, shall consider the matter and shall decided whether he should record the evidence in an application under Order 41 Rule 27 of the Code himself or remand the matter for the limited purpose of hearing/recording of evidence for prove of such document. It may also be taken into consideration that if the document is produced from proper custody, the same being a document which is more than 30 years old, under Section 90 of the Indian Evidence Act it can be taken to have been proved by production. The question is left to the learned Appellate Judge who shall consider the same within a period of 21 days from the date of production of certified copy of the order. 9. The question is left to the learned Appellate Judge who shall consider the same within a period of 21 days from the date of production of certified copy of the order. 9. There shall be no order as to costs. 10. Urgent certified copy of the order be provided as per rules.