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2023 DIGILAW 3066 (PNJ)

Surinder Kumar @ Surinder Kumar Sethi v. Nishi Arora @ Nisha Arora

2023-10-20

GURBIR SINGH

body2023
JUDGMENT Gurbir Singh, J. CM-19698-C-II-2023 : Allowed as prayed for. 2. Main Case : Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dated 14.07.2023 (Annexure P-11), passed by learned Additional Civil Judge (Senior Division), Amritsar, whereby application filed by the petitioner/plaintiff under Order 6, Rule 17 read with section 151 CPC, for amendment of the plaint, has been dismissed. 3. The brief facts, as culled out from the paper book, are that petitioner/plaintiff (hereinafter referred to as - the plaintiff) filed a suit for permanent injunction against the respondent/defendant on the ground that the property was owned by their mother and after her death, same was inherited by plaintiff, respondent and Reetu Arora to the extent of 1/3rd share each as their other brother Parmod Kumar Sethi was disinherited by their mother and another brother Vipan Kumar Sethi had already taken his share from the property in shape of shops of Saree business. Respondent has contested the case on the ground that she is owner in possession of the suit property. She allowed her brother to live in the suit property on the second floor under permissive possession being licensee but he and his family failed to vacate the property and rather have taken forcible possession of part of the property. The license of the plaintiff in respect of second floor portion stood revoked and they are liable to deliver the vacant possession of the entire property to her, for which she had filed a separate suit for declaration, possession and mesne profits along with relief of permanent injunction. She also moved complaint against the plaintiff and his family members. 4. The license of the plaintiff in respect of second floor portion stood revoked and they are liable to deliver the vacant possession of the entire property to her, for which she had filed a separate suit for declaration, possession and mesne profits along with relief of permanent injunction. She also moved complaint against the plaintiff and his family members. 4. The plaintiff wants to amend the plaint by incorporating the aforesaid facts in the plaint in shape of following para as para no.4-A after para no.4 and before para no.5 of the plaint, which reads as under :- "4-A. That not only this, thereafter, the defendant on the basis of her false complaint has got one FIR lodged bearing FIR No.250 dated 17.10.2018, Under Sections, 448, 380 IPC, 1860, Police Station Gate Hakima, Amritsar, against the plaintiff and his wife alleging that in certain disputed rooms the alleged stoften articles were in possession of the her prior to the incident as alleged and the same are theft by the plaintiff and his family members while taking possession of those rooms, whereas entire story in the FIR is false and result of afterthought. She claimed that she had taken the possession of the ground floor and First floor of the house on 17.11.2015 i.e. on the 17th day after the death of Smt. Krishna Wati Sethi, who was mother of the plaintiff and defendant by virtue of alleged sale deed dated 26.07.2002 allegedly executed by Smt. Krishna Wati Sethi favour of defendant to the extent of 60% share and Rajesh Arora to the extent of 40% share, the theoretical transfer as claimed by virtue of the alleged sale deed dated 26.07.2002 cannot be said to have taken effect, particularly when not a single document to show the actual transfer of possession of any portion of the house to the defendant at any point of time and she possess the same on any day, so there is no question of keeping any articles by defendant therein. There is no material that the defendant was in possession of the said rooms on the ground floor and First Floor including the furniture and articles etc. and it was from her possession that the properties were taken out by the plaintiff and his family members. So, no offence under section 380 and 448 IPC are made out against them. There is no material that the defendant was in possession of the said rooms on the ground floor and First Floor including the furniture and articles etc. and it was from her possession that the properties were taken out by the plaintiff and his family members. So, no offence under section 380 and 448 IPC are made out against them. The FIR has been got lodged by the defendant with an ulterior motive and malicious intention to create pressure upon the plaintiff and his family members to settle property dispute. The fact remains that the house in question which was purchased by Late Sh. Ram Nath Sethi father of the defendant and plaintiff, in the name of his wife Smt. Krishna Wati. They are having three sons and two daughters namely Surinder Kumar Sethi, Parmod Kumar Sethi, Vipan Kumar Sethi, Nishi Arora and Reetu Arora. Sh. Ram Nath Sethi died on 20.09.1987 and Smt. Krishna Wati Sethi died on 30.10.2015. All the children were married. The plaintiff has been residing in the said house since his childhood and his marriage was solemnized on 21.02.1977, they both have been residing in the said house and out of their wedlock one daughter Payal was also born, who was brought up by the plaintiff and his wife and 2 and her marriage was solemnized on 02.03.2000 while staying in the aforesaid house. Ration Card, Pan Cards, Voters Cards etc. of the plaintiff and his family members also showing the address of the defendants of the house in question. The defendant Nishi Arora was got married in the year 1984 and admittedly staying in her matrimonial house with her family. The plaintiff being elder brother had performed all the duties and spent considerable amount at the time of marriage of defendant in the year 1984 as well as on the marriage of younger sister Reetu in the year 1997. It is further stated that Parmod Kumar Sethi had already been disinherited and Vipan Kumar Sethi had already taken the shop of Sarees Business namely "Ram Di Hatti", situated at Atta Mandi Bazar, Amritsar in lieu of his share in the aforesaid house and an agreement to this effect was also executed on 17.09.1992. Thus after the death of Smt. Krishna Wati, the defendant, plaintiff and Reetu Arora became co-sharer to the extent of 1/3 share each in the house. Thus after the death of Smt. Krishna Wati, the defendant, plaintiff and Reetu Arora became co-sharer to the extent of 1/3 share each in the house. The plaintiff and his family members have been occupying one room on the ground floor, with common passage and two rooms, kitchen and bathroom on the second floor of house in question, during the life time of Smt. Krishna Wati Sethi and after her death, they came in possession of 1st Floor also. Unfortunately, due to dilapidated condition of building, the roofs of the rooms on the first Boor and second floor fallen down on account of natural causes and then in the month of June, 2017, the plaintiff and his wife have reconstructed the roofs of the rooms after investing huge amount from their own pocket and made them for living. It is further stated that earlier when the wife of plaintiff was keeping good health, she was also running "Friends Boutique" on the ground floor of the house and also got converted the residential electricity connection (DS) to commercial connection (NRS) in the year 2003 and landline phone connection no. 0183-2530699 of BSNL was also operating from the ground floor. The electricity meters have been installed in the name of father Late Sh. Ram Nath Sethi, Since, the plaintiff and his wife are senior citizen and not keeping good health, thus their only daughter Payal have started residing on the 1st Floor of the house along with her husband and children. The photographs showing fallen roofs on the first and 2nd Floor and Visiting Card are also annexed herewith. Not only this, earlier also the defendant had started threatening to forcibly dispossess the plaintiff and his family members by alleging that they have no concern with the house and her mother has conferred all her rights upon her. Ultimately, the plaintiff filed a civil suit for permanent injunction against the defendant drafted on 23.05.2007. The defendant appeared through her counsel and filed written statement drafted on 31.08.2007. Later on, with the intervention of respectable, the defendant has agreed that she will not interfere in the possession of the plaintiff and after believing upon her assurance, the suit was withdrawn. The defendant appeared through her counsel and filed written statement drafted on 31.08.2007. Later on, with the intervention of respectable, the defendant has agreed that she will not interfere in the possession of the plaintiff and after believing upon her assurance, the suit was withdrawn. It is pertinent to mention here that in the written statement defendant alleged that the plaintiff is licensee and Smt. Krishna Wati is in possession of whole of the suit property, who had sold out the property to her vide regd. Sale deed dated 26.07.2002. However, there was no specific denial about the possession of the plaintiff on the ground floor with common passage. Copy of the plaint dated 23.5.2007 and written statement dated 31.08.2007 are annexed herewith. After few years after the death of Smt. Krishna Wati, the defendant in association with anti social elements have again started threatening to forcibly dispossess the plaintiff and the plaintiff again filed the present civil suit for permanent injunction on 19.07.2018 which is pending for disposal in the learned court. The story of the defendant is highly doubtful, improbable and uncertain. The plaintiff and his wife have been falsely implicated by the Police at the instance of the defendant in order to create pressure to settle the property dispute. Even, the Mohalla residents had also given a Majornama in favour of the plaintiff and his wife with an assurance that they are innocent and no injustice would be done with them. Copy of Majornama is annexed herewith. The story of the defendant that after alleged purchase of the house in question, the plaintiff said to defendant that he want to reside in the house with his family for some time and very soon he will arrange for the other house and would vacate this house is malicious and concocted. If that was so, then why the defendant did not took such plea while filing written statement in the earlier Suit in the year 2007. The defendant alleges that she took the possession of the ground and first floor of the house on 17.11.2015 i.e. on the 17th day after death of Smt. Krishna Wati Sethi is absolutely false, incorrect and malicious. She never took the possession of ground floor and First floor of the house. The defendant alleges that she took the possession of the ground and first floor of the house on 17.11.2015 i.e. on the 17th day after death of Smt. Krishna Wati Sethi is absolutely false, incorrect and malicious. She never took the possession of ground floor and First floor of the house. Once the defendant has been residing in her matrimonial house since the date of marriage i.e. since 1984, then question of her possession and further question of missing of her furniture i.e. Sofa Set, Centre Table, Kitchen Utensils, clothes lying in two wooden almirahs lying on the ground floor and Godrej Almira, Bed, Four Gold Bangles, 1 Gold set, Silver Dinner set and bed were missing from the rooms at first floor does not arise because neither the defendant ever came into possession of any portion of floor of the house nor any of her articles were lying or missing from the rooms at ground floor and first floor of the house. The whole story of alleged possession of defendant and alleged theft is malicious and concocted and came into picture when the defendant came to know about the Civil Suit filed by the plaintiff on 19.07.2018 and thereafter, the defendant has concocted a false story that on 02.08.2018, she found her locks were broken and articles lying therein were missing. The defendant never came in possession of the property on the basis of alleged documents and on the contrary, the plaintiff and his wife have been residing in the house for the last about 55 and 41 years respectively. Admittedly, the plaintiff and his wife are having possession of Ground floor and second Floor and after the death of Smt. Krishna Wati, roofs of room at First Floor and second floor had fallen which were reconstructed by the plaintiff and his wife in the month of June, 2017 after spending huge amount. So, the allegations of taking possession in 2015 after the death of her mother from whom she claimed to have purchased the house in question on 26.07.2002 is absolutely false. Smt. Krishna Wati (now deceased) has no legal right to executed the sale deed in favour of any one. No consideration sale amount was occurred as mentioned in the alleged document of sale deed and the transaction shown in the alleged sale deed is a sham transaction. Smt. Krishna Wati (now deceased) has no legal right to executed the sale deed in favour of any one. No consideration sale amount was occurred as mentioned in the alleged document of sale deed and the transaction shown in the alleged sale deed is a sham transaction. Thus the alleged sale deed and gift deed is a result of fraud, forged, fabricated and a creative document which is created by the defendant and her associates just defeat the right of the plaintiff and the same does not bind upon the rights of the plaintiff. On the other hand, in the above FIR No.250 dated 17/10/2018, the interim anticipatory bail of the applicant namely Sh. Surinder Kumar Sethi and Smt. Kavita Sethi was granted by the Hon'ble Court of Sh. Manoj Bajaj, Punjab and Haryana High Court, Chandigarh on stated 29/04/2019, in which the court has given his version which is reproduced as under :- "Learned counsel for the petitioners contends that property in question where from the alleged theft is complained by the complainant is in possession of the petitioners. According to him, a suit for permanent injunction was filed by the petitioner on 19.07.2018 against the complainant (defendant) and the same is pending. Defendant has also filed a separate suit for declaration on 28.09.2018 and the said suit is also pending. It is further contended that the alleged occurrence took place on 02.08.2018 whereas the FIR was got registered on 17.10.2018. The complainant is sister of petitioner No.1. According to him, the dispute between the parties is of civil nature. Notice of motion for 27.05.2019." and later on, the anticipatory bail of the applicant namely Sh. Surinder Kumar Sethi and Smt. Kavita Sethi has been confirmed by the Hon'ble Justice Sh. Manoj Bajaj. Punjab and Haryana High Court, Chandigarh on dated 29/04/2019 in which the court has given his version which is reproduced as under :- "Considering above, the petition is allowed and the interim bail granted by this Court vide order dated 29.04.2019, is made absolute. However, it is made clear that this order shall remain operative till the filing of the final report under Section 173(2) Cr.P.C." No recovery of alleged soften articles has been effected from the applicant namely Sh. Surinder Kumar Sethi or Kavita Sethi during the investigation. Ms. Payal Mehta W/o Mr. Sachin Mehta d/o Sh. However, it is made clear that this order shall remain operative till the filing of the final report under Section 173(2) Cr.P.C." No recovery of alleged soften articles has been effected from the applicant namely Sh. Surinder Kumar Sethi or Kavita Sethi during the investigation. Ms. Payal Mehta W/o Mr. Sachin Mehta d/o Sh. Surinder Sethi has also moved an application for re-enquiry in the above said FIR which bears No. 5057 dated 12/09/2018 which was entrusted to ADCP Crime, Amritsar, who after inspecting the property in question, given his report about the actual and factual possession under the plaintiff and further it is also give report by ADCP Crime that nothing belonging to the defendant was ever kept in the subject property and recommended for cancellation of the FIR being false one." 5. Learned counsel for the petitioner has argued that the amendment sought is not going to change the nature of the case. The said amendment is necessary to be brought on record since the said amendment is related to subsequent events. If the same is not allowed, the plaintiff would suffer irreparable loss and injury. Reliance in this regard has been placed on a judgment of Hon'ble Apex Court namely Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another reported as 2023(1) RCR (Civil) 851. 6. I have heard learned counsel for the petitioner and have gone through the case file. 7. Plaintiff has filed a simple suit for permanent injunction restraining the defendant, her agents, attorneys, representatives from interfering into the peaceful possession of dispossessing the plaintiff forcibly and illegally from the portion of the house, as mentioned in the heading of the plaint. The suit of the plaintiff is simply injunction simplicitor. The other party is claiming ownership on the basis of title, for which separate suit is already filed and pending. The contents of the FIR are not necessary to be brought on record for just decision of the case. The amendment, which is not necessary at all for just decision of the case, cannot be allowed. In case of Sanjeev Builders (supra), it is held that the prayer for amendment is to be allowed if amendment is required for effective and proper adjudication of controversy between the parties. The learned Court below has rightly held that the aforesaid amendment is not necessary at all. 8. In case of Sanjeev Builders (supra), it is held that the prayer for amendment is to be allowed if amendment is required for effective and proper adjudication of controversy between the parties. The learned Court below has rightly held that the aforesaid amendment is not necessary at all. 8. In view of the above discussion, I do not find any illegality or perversity in the impugned order passed by the Court below. The present revision petition is without any merit and the same is hereby dismissed. 9. Pending applications, if any, shall stand disposed of along with this judgment.