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2023 DIGILAW 360 (HP)

Mohinder Kumar v. Krishan Lal

2023-06-19

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with order dated 26.12.2019, passed by the learned Civil Judge (Senior Division-1), Shimla, H.P., whereby an application under Order 6 Rule 17 CPC read with Section 151 CPC, having been filed by the petitioner-plaintiff for amendment of the plaint came to be dismissed, plaintiff has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid impugned order and thereafter, allow the application for amendment. 2. Precisely, the facts of the case are that plaintiff filed suit for permanent prohibitory injunction restraining the respondents from interfering in the peaceful possession of the land comprised in khewat No. 39/94 min, Khatauni No. 174, khasra No. 1592, 1593 and 1915 situate at Mohal Vikas Nagar, Shimla, Himachal Pradesh, in any manner whatsoever, without due process of law. Plaintiff averred in the suit that he had purchased the suit land/structure from its previous owner as he was already having physical possession of the land/structure constructed in the aforesaid khasra numbers as tenant under the previous owners Anil, Punam and Jamna Devi since long and is still occupying the same as owner after its purchase. 3. Aforesaid case set up by the plaintiff came to be refuted by the respondents by way of written statement, wherein they pleaded that neither plaintiff nor his predecessor in interest was in possession of the suit land and it was joint between the co-sharers. 4. During the pendency of the aforesaid suit, plaintiff filed an application under Order 6 Rule 17 CPC, praying therein amendment of the plaint with a view to place on record certain facts, which may be relevant for proper adjudication of the controversy. 5. While filing reply to the aforesaid application, respondents sought dismissal of the application on the ground that same has been filed at the belated stage and amendment, if permitted, would change the entire complexion of the suit. 6. Learned trial court on the basis of pleadings adduced on record in the application, dismissed the same. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid order. 7. 6. Learned trial court on the basis of pleadings adduced on record in the application, dismissed the same. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid order. 7. Having heard learned counsel for the parties and perused material available on record especially, application for amendment, this Court finds that plaintiff intended to place on record certain facts, which as per him, took place after filing of the plaint. In the application, he alleged that Smt. Darshanu had filed an application before Settlement Collector, Shimla, for recording her possession over khasra No. 1952, which was allowed, as a result, she wrongly came to be recorded in possession of aforementioned khasra number. He alleged that in the revenue record pertaining to year 2006-07, person namely Vishwajit and Vishal are shown to be in possession of khasra Nos. 1592, 1593 and 1915 and plaintiff has been wrongly shown to be in possession of khasra No. 1587 of the late Smt. Darshnoo. He alleged that since aforesaid change in the revenue record has been made in violation of rules of Land Record Manual, coupled with the fact that applicant has filed the application for correction of entry of the revenue record, which is pending adjudication before the Tehsildar, suit having been filed by him needs to be amended as per details given in the application. In the application, plaintiff also alleged that he has come to know that vide mutation No. 671 dated 20.8.2010, some oral exchange has taken place between late Smt. Darshnoo and Sh. Krishan Lal i.e. defendnat No.1 and since now, Krishan Lal is threatening to dispossess the applicant from khasra No. 1915, prayer made on his behalf for amendment of the plaint, needs to be allowed. Plaintiff alleged that Krishan Lal had also filed three separate applications for partition of the suit land having No. 81-IX of 2015, 82-IX of 2015 and 83-IX of 2015. He alleged that though he was made party in the application No. 81-IX of 2015, but has been wrongly proceeded ex- parte. Most importantly, in application, he himself admitted factum with regard to preparation of the instrument of partition. He alleged that though he was made party in the application No. 81-IX of 2015, but has been wrongly proceeded ex- parte. Most importantly, in application, he himself admitted factum with regard to preparation of the instrument of partition. He alleged that since he wants to get the entries in the revenue record as well as partition be declared null and void and as such, he be permitted to make the amendment in the plaint. 8. Defendants while opposing prayer made in the application, alleged that suit land has already been partitioned vide instrument of partition dated 27.6.2017 in case No. 83 of 2015 and as such, amendment sought to be made is not necessary for proper adjudication of the case, rather application for amendment appears to have been filed with an intention to delay the proceedings. 9. Before adverting to the correctness of rival submissions made by the learned counsel for the parties, it would be apt to take note of the judgment passed by the Hon’ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212 , wherein Hon’ble Apex Court has culled out certain principles while allowing or rejecting the application for amendment, which are as under:- “13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009)10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 10. In the aforesaid judgment, the Hon'ble Apex Court has clearly held that while allowing/rejecting the application for amendment of the plaint, it is to be seen whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. 11. In nutshell, case of the petitioner is that one Mahesh Chand was one of the co-owner in possession of the land comprised in khewat No. 39/94 min, khatauni Nos. 172 to 177, having 756/6048 shares and he was recorded in possession of the land comprised in khasra No. 1592, 1593 and 1915. Vide two sale deeds dated 18.3.2003 and 23.3.2004, plaintiff purchased whole of the share of late Sh. Mahesh Chand from his legal heirs Anil Kumar, Punam and Jamna Devi. As per plaintiff, defendant No.1 is in possession of the land comprising khasra No. 1588 to 1591 and 1918, but now she is alleging her right to passage through land comprised in khasra No. 1915. 12. In para-6 of the un-amended plaint, plaintiff himself has pleaded that defendants in connivance and collusion with each other have threatened to dispossess the plaintiff without any right, title or interest in the suit property and as such, defendant No.1 cannot stake claim of the suit property without adverting to the due process of law. He averred that till the partition of the suit property the possession of the plaintiff over the suit property cannot be disbursed or interfered with by the defendants in any manner whatsoever. However, now it is not in dispute that suit land stands partitioned and application for amendment of the plaint, as detailed herein above, has been filed after preparation of the instrument of partition. However, now it is not in dispute that suit land stands partitioned and application for amendment of the plaint, as detailed herein above, has been filed after preparation of the instrument of partition. Now suit has been sought to be amended on the ground that plaintiff wants to challenge the said partition effected by the revenue authorities, but such plea of him if permitted would certainly change the complexion of the suit, which is for permanent prohibitory injunction, restraining the respondents from interfering the peaceful possession of the plaintiff over the suit land till the same is partitioned inter-se co-sharers in accordance with law. 13. In the un-amended plaint, precise case of the petitioner was that defendant No.1 cannot stake claim of the suit property without adverting to the due process of law. He stated in the plaint that his possession over the suit land cannot be disturbed/interfered with the defendant in any manner till the time land is not partitioned in accordance with law. Now by way of amendment, petitioner-plaintiff intends to challenge the instrument of partition prepared by the revenue authorities. He has nowhere furnished the details, if any, with regard to other co-owners, who may have got share in the suit property. Needless to say, court cannot declare partition to be null and void without making all the co-sharers as party. Since in un-amended petition, specific allegation of interference was made against Smt. Darshna Devi and thereafter, Krishan Lal, cause of action, if any, can be said to have been accrued against the aforesaid two persons. Suit sought to be amended came to be filed against Smt. Darshana Devi and thereafter, Krishan Lal that too for restraining them from interfering in the peaceful possession of the suit land. Amendment, as sought for, if permitted would definitely change the entire complexion of the suit, which was for permanent prohibitory injunction, restraining the defendants from interfering in the possession of the suit property till the time same is partitioned by meets and bounds. 14. Leaving everything aside, there appears to be otherwise no justification to allow the amendment for reason that very specific prayer of the plaintiff from the day one was to restrain the defendants from disturbing his peaceful possession over the suit land till the same is partitioned by meets and bounds. 14. Leaving everything aside, there appears to be otherwise no justification to allow the amendment for reason that very specific prayer of the plaintiff from the day one was to restrain the defendants from disturbing his peaceful possession over the suit land till the same is partitioned by meets and bounds. If the un-amended plaint is read in its entirety, there is nothing to suggest that plaintiff ever claimed his ownership over the particular khasra numbers. Amendment sought to be made is not at all relevant for adjudication of the case, rather if same is permitted, would change the entire complexion of the suit, which is not permissible under law. 15. Consequently, in view of the above, this Court finds no illegality or infirmity in the impugned order dated 26.12.2019 and as such, same is upheld. Accordingly, present petition fails and dismissed being devoid of any merits.