Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1977 (RAJ)

Prem Singh v. Virendra

2022-07-08

ASHOK KUMAR GAUR

body2022
JUDGMENT : 1. SB Civil Writ Petition No.10393/2015 has been filed by the plaintiff-petitioners challenging the order dated 21st April, 2015, whereby the application, filed by the petitioners, under Order 6 Rule 17 CPC has been dismissed. 2. SB Civil Writ Petition No.10197/2015 has been filed by the plaintiff-petitioners challenging the order dated 19th January, 2015, whereby the application, filed by the petitioners, under Order 6 Rule 17 CPC, for amending the temporary injunction application, has been dismissed. 3. SB Civil Writ Petition No.10471/2015 has been filed by the plaintiff-petitioners challenging the order dated 21st April, 2015, whereby the application, filed by the petitioners, under Order 1 Rule 10 CPC has been dismissed. 4. SB Civil Writ Petition No.10154/2015 has been filed by the plaintiff-petitioners challenging the order dated 21st April, 2015, whereby the application, filed by the petitioners, under Order 1 Rule 10 CPC to implead the parties in temporary injunction application has been dismissed. 5. This Court finds that the petitioners had filed a suit for declaration and permanent injunction against the defendant- respondents - Virendra Singh and Bhole, wherein it was prayed that the property in question may be declared to be in the exclusive ownership of the petitioners and further, permanent injunction was required to be issued against the respondents for not creating any hindrance in use of the property and further, they were required to be restrained to make any construction. 6. Learned counsel for the petitioners submitted that after filing of the suit, it came to notice of the plaintiff-petitioners that in respect of the same property, which was subject-matter of the suit, few persons, in clandestine manner, got one adopted deed dated 6th July, 2011 executed without paying any consideration and the land in question was given to one Rakesh, adopted son of Shrichand and mother of adopted child, namely, Hemlata sold the said property to wife of the defendant - Bhole. 7. Learned counsel submitted that in view of the changed circumstances, where these transactions took place, the plaintiff- petitioners moved an application under Order 6 Rule 17 CPC for making amendment in the suit and prayed that subsequent developments were required to be brought on record and the sale deed and transfer of property were required to be set aside by the Court. 8. 8. Learned counsel for the petitioners submitted that the application under Order 1 Rule 10 CPC was also filed in the main suit as well as in the application for temporary injunction, as the subsequent transferees, in the land in question, were required to be added as a party defendant in the suit. 9. Learned counsel submitted that the Court below, by the impugned order dated 21st April, 2015, has dismissed both the applications, filed by the petitioners. 10. Learned counsel submitted that the Court below has wrongly came to conclusion that by making amendment in the suit, the nature of suit will be changed and further, the parties, who are already there as defendant, will together be clubbed as subsequent purchaser-transferees of land and as such, the Court below, without considering the nature of amendment, has rejected the application filed by the petitioners. 11. Learned counsel submitted that the petitioners had filed a suit for declaration and if the subsequent developments were null and void, the same could have been decided by the Court by further passing a decree of declaration. 12. Learned counsel submitted that subsequent developments and transfer of land were not changing the nature of suit in any manner and the Court below further failed to consider that in order to avoid multiplicity of the proceedings, the petitioners had made an application for amendment of the pleadings. 13. Learned counsel submitted that at the time of filing of suit, the petitioners were not aware as what has transpired between Shrichand, who allegedly gave the property to his adopted son and further, the adopted son and the mother sold the property. 14. Learned counsel submitted that the moment, the petitioners came to know about all these illegal transactions and subsequent developments, immediately an application was filed. 15. Learned counsel for the petitioners submitted that the very purpose of making amendment in the pleadings will be frustrated, if the property changes the hands during pendency of litigation between the parties and if the defendants in the suit, in connivance with other persons, transfer the land then the subsequent transferees/purchaser of the land are required to be brought before the Court as defendants and thereafter, in presence of all the proper parties, such dispute can be decided. 16. 16. Learned counsel submitted that the Court below has not considered that title of the petitioners was never disputed by the original defendant and only by taking a plea while moving an application under Order 1 Rule 11 CPC, it was pleaded that the property in question has been transferred and as such, the contesting defendants did not have anything in their hands. 17. Learned counsel for the petitioners places reliance on the following judgments : (i) Abdul Rehman & Anr. v. Mohd. Ruldu and Ors. [ (2012) 11 SCC 341 ] (ii) Varun Pahwa v. Renu Chaudhary [2019 LawSuit (SC) (iii) Gadamsetty Veeranjeneyulu v. Pokuru Ramaiah & Anr. [2018(4) Civil Court Cases 175 (T&A) (iv) Chandra Prakash Agarwal v. Ridhkaran Parasrampuria & Ors. [2016 LawSuit (Raj.) 483. 18. Learned counsel for the respondents - Mr.JK Moolchandani submitted that the Court below has rightly came to conclusion that by permitting amendment in the pleadings, the nature of suit will be changed and as such, if the real controversy, involved in the suit, was declaring the petitioners-plaintiff as title holder and if the property in the question has been transferred to different persons, the same would not be in the form of reiteration and as such, if the petitioners had any grievance then the proper course was available for them. 19. Learned counsel for the respondents submitted that the issue of transfer might be there if proposed amendment is allowed and as such, the Court below has not committed any error in rejecting the application. 20. Learned counsel for the respondents has also placed reliance on the judgments passed by this Court in the case of LR's of Late Kheta Lal & Ors. v. LR's of Late Bhikha Lal [2018(2) DNJ (Raj.) 486] as well as in the case of Manju Lata Sharma v. Prahlad Tamboli & Ors. [2018(1) DNJ (Raj.) 209]. 21. On the strength of said judgments, learned counsel for the respondents submitted that the parties, who seek to be cooperate the amendment has to act with due diligence and if such fact is already in the knowledge of the party concerned then subsequently such amendments cannot be allowed. 22. I have considered the submissions made by learned counsel for the parties and perused the record of the case. 23. 22. I have considered the submissions made by learned counsel for the parties and perused the record of the case. 23. This Court has gone through the plaint, which has been filed by the petitioners and finds that the petitioners pleaded in their plaint that the land in question has been used by them from last so many years and their ancestors were using the said land for their personal use and they were keeping their several articles and as such, there was exclusive possession of property in question with the petitioners. The said plaint also further reveals that allegation was levelled against the defendants that they, in illegal manner, wanted to have possession of land and they also wanted to dispossess the petitioners-plaintiff. 24. This Court finds that the petitioners, in their suit, have also pleaded that one Shrichand had expired without any issue and he had sought permission to make construction in the land in question and the permission, so obtained by him, was in order to deprive the present petitioners from use of their property. 25. This Court, on bare reading of the suit filed by the petitioners, finds that the petitioners had sought declaration in their favour to declare them as exclusive owner of the property and further, they wanted injunction against the defendants of not taking any hindrance in their use. 26. This Court finds that the amendment application, which was filed by the petitioners, had mentioned that late Shrichand had adopted one Rakesh and the adoption deed was executed on 23 rd July, 2005 and in clandestine manner, without paying any consideration, a registered sale deed was executed on 8th July, 2011. 27. This Court finds that the petitioners had filed the suit on 18th July, 2011 and in the suit, they have not mentioned anything about adoption, being made or any sale deed, being executed. 28. This Court further finds that the amendment, which has been sought by the petitioners, will now result into considering the adoption of one Rakesh by Shrichand validly or not and thereafter, the issue of registered sale deed will further be considered as whether the sale deed was rightly executed or not? 29. 28. This Court further finds that the amendment, which has been sought by the petitioners, will now result into considering the adoption of one Rakesh by Shrichand validly or not and thereafter, the issue of registered sale deed will further be considered as whether the sale deed was rightly executed or not? 29. This Court, considering the facts of this case, finds that the prayer, which was made by the petitioners, will not be in same continuation or having any relevance with the prayer, which has been sought by the petitioners in their main suit. 30. This Court finds that the purpose of making amendment in the pleadings is to decide the real question in controversy between the parties. The real question in controversy between the parties should also not cause injustice or prejudice to other side. 31. This Court finds that if the petitioners were having grievance only in respect of alleged threat by the respondents to dispossess them and further to seek declaration to be exclusive owner, the subsequent declaration or development, which had taken place prior to filing of suit will now be if allowed or to be taken by way of amendment, the very nature of controversy between the parties will be changed and as such, the prayer made by the petitioners in the amendment application has rightly been declined by the Court below. 32. The submission of learned counsel for the petitioners that the Court should be liberal to allow the amendment and the Court should make an endeavour to avoid multiplicity of the proceedings between the same parties, this Court finds that the purpose of allowing amendment is to determine the question involved in the suit, which is filed by the plaintiff-petitioners and if the subsequent developments have relevance with the controversy, which is already raised, the Court is required to allow such amendment. 33. This Court finds that in the case of Abdul Rehman & Anr. (supra), the Apex Court, after considering the scope of the Order 6 Rule 17 CPC, found from the facts of that case that there was factual matrix in the suit filed by the plaintiffs, which were clearly made out about the averments in the un-amended plaint and thereafter, amendment was sought for cancellation of sale deed. 34. (supra), the Apex Court, after considering the scope of the Order 6 Rule 17 CPC, found from the facts of that case that there was factual matrix in the suit filed by the plaintiffs, which were clearly made out about the averments in the un-amended plaint and thereafter, amendment was sought for cancellation of sale deed. 34. The Apex Court, in view of such factual aspects of the matter, found that challenge to the sale deed was required to be permitted by way of amendment and as such, the judgment relied upon by learned counsel for the petitioners is of no assistant to him. 35. This Court has also gone through the other judgments, cited by learned counsel for the petitioners, wherein the Apex Court as well as this Court has been consistently holding that the amendment, which has relevance and importance in the real controversy between the parties, needs be allowed, however, this Court finds that in the present case, the nature of controversy, involved between the parties, cannot be connected in any manner with the subsequent events or the events, which the petitioners want to bring on record to let out the adoption and sale deed. 36. This Court finds that the Court below has not committed any error in passing the order. 37. Accordingly, the writ petitions stand dismissed having no force therein. 38. A coy of this order be separately placed in each file.