A revision petition challenging a dismissal of an application to amend plaint. The High Court held that since the trial stage was initial and issues not framed, allowing the amendment to add a partition claim would do complete justice without causing prejudice.
The revision petition is allowed and the impugned order dated 9.2.2008 is set aside.
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.
CR No.1669 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.1669 of 2008 (O&M)
Date of Decision: 26.4.2010
Bala
.... Petitioner.
Versus
Rajinder Singh and others
.....Respondents.
CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.C.B.Goel, Advocate for the petitioner.
Mr.Adarsh Jain, Advocate for respondents No.1 to 5.
RAKESH KUMAR JAIN J.
This revision petition has arisen out of an order passed by the learned Additional Civil Judge (Sr.Division), Panipat dated 9.2.2008 whereby an application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short `CPC') has been dismissed.
Learned counsel for the petitioner has submitted that defendant No.5 (Maha Singh) suffered a collusive decree in favour of defendants No.1 to 4 on 19.7.1990. The said decree was challenged by defendants No.6 to 8 along with the present petitioner, however, the said suit was dismissed in terms of Order 17 Rule 3 CPC on 13.9.1999. The petitioner alone had filed the present suit for declaration challenging the decree passed in civil suit No.407/1990 and decree passed in civil suit No.184/1996 on the ground that she was a minor at the time when the suit was filed. During the pendency of the suit, an application for amendment has been filed in order to plead that
CR No.1669 of 2008 (O&M) -2-
“and for separate possession by way of partition of Gair Mumkin Banjar Kadim property which is marked by letters ABCDE ; shown red in the site plan and bounded as under :
North : Property of G.P.Nangal Kheri and in possession of Rajender Singh and house of Sukhiya s/o Nanha Ram.
South: Property of Harison
East: Open space of G.T.road
West: Thorough fair/rasta
which comprises khasra no.54, killa No.6/2(3-0), khasra No.55, Killa No.10(2-4), situated within the area of village Nangal Kheri, Tehsil and District Panipat.”
On the basis of this pleading, same prayer was made in the prayer clause. It is submitted by learned counsel for the petitioner that the suit had not made any headway as even issues were not framed when the application was filed.
On the other hand, counsel for the respondents has submitted that the petitioner is shown as a married woman in the plaint (Annexure R- 1) therefore, it cannot be said that she was minor at the time when the suit was filed. The question in this case is also with regard to the fact as to whether the petitioner was minor at the time when the earlier suit was dismissed in terms of Order 17 Rule 3 CPC on 13.9.1999.
After hearing the learned counsel for the parties, I am of the considered opinion that this revision petition deserves to be allowed because the reasoning adopted by the trial Court is not in consonance with law. The trial Court is not supposed to observe on the merits of the case and is only required to see whether in the facts and circumstances of the case, amendment in the plaint is required or not for doing complete justice
CR No.1669 of 2008 (O&M) -3-
between the parties.
In my considered opinion, the petitioner should be allowed to take this plea of partition of the suit property as well while seeking declaration that the judgment and decree passed in the earlier two suits is illegal and is not binding upon her rights as the suit is at the initial stage and the application for amendment was filed when even the issues were not framed. Thus, no prejudice would be caused to the respondent if the amendment is allowed to be carried out.
In view of the above, the revision petition is allowed and the impugned order dated 9.2.2008 is set aside.
26.4.2010 Meenu
(RAKESH KUMAR JAIN) JUDGE
3 issues framed by the court
Whether an amendment application under Order 6 Rule 17 CPC should be allowed when the trial was at the initial stage before framing of issues.
Whether the trial court can be restricted to adjudicating only the merits of the original cause of action while ignoring a claim for partition affecting the decree.
Whether allowing an amendment to add a prayer for partition in an existing suit would cause prejudice to the respondents.
2 provisions across 1 enactments
Bala
Rajinder Singh
RAKESH KUMAR JAIN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
