In a civil revision under Article 226 seeking setting aside of an appellate court order dismissing an amendment of plaint application. The High Court found no ground to interfere and dismissed the petition.
The revision petition was dismissed; the order of the lower appellate court setting aside the amendment application was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No.3554 of 2008
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.3554 of 2008
Date of Decision:22.07.2009
Rattan Kaur w/o Lakha Singh and another
.....Petitioners
versus
Gurdeep Singh son of Lakha Singh and another
.....Respondents
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.
Present: Mr.R.S.Bajaj, Advocate, for the petitioners.
Mr.Swarn Singh, Senior Advocate, with Mr.N.S.Rapri, Advocate, for respondent No.2.
AJAY KUMAR MITTAL, J.(Oral)
In this revision petition filed under Article 227 of the Constitution of India, the petitioners have prayed for setting aside the order dated 29.03.2008 (Annexure P-2) passed by the Additional District Judge, Jalandhar, whereby an application filed by the petitioners under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the plaint at the appellate stage, was dismissed.
Briefly stated the facts of the case are that as per the averments, the petitioners and respondent No.1 entered into an agreement to sell dated 30.07.1996 in respect of the land measuring 59 kanals 10 marlas situated at village Bahupur, Tehsil and District Jalandhar, (here-inafter referred to as the “suit land”) at the rate of Rs.2 lacs per acre for a total sale consideration of Rs.14,87,500/-. A sum of 10,000 pounds was
Civil Revision No.3554 of 2008
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paid by the petitioners to respondent No.1 as earnest money at the time of execution of the said agreement to sell. The sale deed was to be executed on or before 24.12.1997 on receipt of the balance amount of consideration. It has further been averred that an additional amount of 10,000 pounds was paid by the petitioners to respondent No.1 and the period for execution of the sale deed was extended upto 30.04.1999. It has also been stated that after execution of the agreement to sell dated 30.07.1996, respondent No.2, who is minor son of respondent No.1 filed a suit for declaration on 06.08.1996 against respondent No.1 whereupon a collusive decree was passed on 08.02.1997 in favour of respondent No.2 and against respondent No.1 on the ground that respondent No.2 was owner in joint possession of the suit land on the basis of settlement arrived at between him and respondent No.1. The petitioners filed the suit on 26.07.1999, out of which the present revision petition has arisen, wherein the trial Court decree dated 08.02.1997 passed in favour of respondent No.2 had already been challenged on the ground that the same was illegal, null and void. The trial Court had dismissed the suit vide judgment and decree dated 02.12.2005 and an appeal against the same is pending before the lower appellate Court in which an application for amendment of the plaint under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure was filed by the petitioners. The petitioners had sought amendment in the plaint to the following effect:
“ (iv) That the alleged attorney who has filed the suit on behalf of Kuldip Singh, minor, was not competent to file the suit dated 06.08.1996 and the natural guardian without the permission of the Court cannot authorise any person to act on his/her behalf for the cause of the minor. The said suit was filed and no service was ever affected upon the defendant Gurdip Singh and the same
Civil Revision No.3554 of 2008
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set of lawyers by misleading the Court succeeded in getting the decree dated 08.02.1997, which is not sustainable in the eyes of law. No land could be given to Kuldip Singh as no alleged family settlement was ever proved on the Court file and neither any land which was alleged to have been given to defendant Gurdeep Singh was ever proved on the file. The judgment and decree was obtained by the plaintiff in that suit by playing fraud upon the Court and is a product of misrepresentation and concealment of the facts. Had the parties to the suit apprised the Court about true and correct facts, the Ld. Court of Sh.M.S.Randhawa, Civil Judge (Junior Division), Jalandhar would not have passed the impugned judgment and decree. No decree as claimed in the suit can be granted on the basis of pleadings, facts, alleged admissions and law in favour of Kuldip Singh, minor, in any manner”.
The lower appellate Court while rejecting the aforesaid application had in para 5 of its order dated 29.03.2008 recorded as under:-
“After hearing the learned counsel for the parties and going through the record, I have come to the conclusion that the application moved by the appellants/applicants for amendment of the plaint deserves no consideration because the plaintiff/appellants have filed suit in the learned lower court for specific performance on the basis of agreement to sell dated 30.07.1996 with respect to certain land on the ground that defendant/respondent No.1 executed an agreement to sell in favour of the plaintiffs/appellants and has challenged the judgment
Civil Revision No.3554 of 2008
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and decree dated 08.02.1997 passed by the learned Civil Judge (Junior Division), Jalandhar as collusive, contrary to law. All the grounds available to the plaintiffs/applicants for challenging the said judgment and decree were taken by the plaintiffs/appellants/ applicants and there is nothing on the record to show that why whatever facts which are required to be brought on the file by way of proposed amendment were not pleaded earlier. It appears that the present application has been filed by the appellants/applicants just to delay the disposal of the present appeal which is pending for the last more than 1-1/2 years. Therefore, this application moved by the appellants/applicants for amendment of the plaint deserves no consideration and the same is dismissed. However, nothing said or observed in this order will affect the merits of the main appeal”.
Learned counsel for the petitioners could not dispute that the judgment and decree dated 08.02.1997 passed by the trial Court in favour of respondent No.2 has already been challenged by the petitioners in the said civil suit.
After hearing learned counsel for the parties and in view of the above, no ground to interfere by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India is made out. Accordingly, there is no merit in the present revision petition and the same is hereby dismissed.
(AJAY KUMAR MITTAL) JUDGE
July 22, 2009 seema
3 issues framed by the court
Whether Article 227 jurisdiction exists to interfere with the dismissal of an application for amendment of plaint at the appellate stage.
Whether the proposed amendments were filed to delay the disposal of the pending appeal.
Whether any genuinemerit is made out to set aside the order of the lower appellate court.
2 provisions across 2 enactments
Rattan Kaur w/o Lakha Singh and another
Gurdeep Singh son of Lakha Singh and another
Ajay Kumar Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
