Dismissed

Om Parkash v. Raghubir & Ors.

Punjab & Haryana HC24 May 2011CR/3445/2011

Case brief

AI extract

What is this about?

High Court in revision from trial court order dismissed petition seeking amendment of plaint after commencement of trial, citing settled law that amendments are not allowed unless necessary to determine the real controversy and supervisory jurisdiction cannot be used for reappreciation of evidence.

What did the court decide?

Revision petition dismissed for lack of merit; trial court order upholding is maintained.

Om Parkash Vs Raghubir & Ors. — Property and Title | Punjab & Haryana HC (2011)

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Civil Revision No.3445 of 2011(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No.3445 of 2011(O&M) Date of Decision: May 24, 2011

Om Parkash

.....Petitioner

Raghubir and others

.....Respondents

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

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Present: Mr.Raj Mohan Singh, Advocate for the petitioner.

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.....

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RAM CHAND GUPTA, J.(Oral)

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The present revision petition has been filed under Article 227 of the Constitution of India for seeking exercise of extra-ordinary supervisory jurisdiction of this Court for quashing of order dated 18.5.2011, Annexure P1, passed by learned Civil Judge, Junior Division, Bhiwani, vide which application filed by petitioner under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint was declined.

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I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

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Facts relevant for the decision of present revision petition are that a suit for declaration was filed by present petitioner-plaintiff and pro forma respondent-plaintiff to the effect that they along with pro forma defendants are owners in possession of the land duly described in the heading of the plaint, total measuring 190 kanals 12 marlas and that mutation Nos.1937, 1938 in favour of defendants no.1 to 8 on the basis of

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Civil Revision No.3445 of 2011(O&M)

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entries in the revenue record are totally wrong, illegal, null and void and that plaintiffs and pro forma defendants are entitled to get their names recorded in the revenue record as owners in possession with consequential relief of injunction.

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Brief plea taken by plaintiffs and pro forma defendants are that earlier father of the defendants used to cultivate the land in dispute as tenant on Batai-Tihai for a long period and after death of their father, defendants stopped paying Batai-Tihai and have illegally got their names entered in the revenue record and hence, the revenue record is liable to be corrected.

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On the other hand contesting defendants had taken the plea that earlier their father was tenant on Batai-Tihai and acquired the rights of occupancy tenancy and they have also got an order from Assistant Collector, Ist Grade, Bhiwani dated 5.12.2005 and in consequence of said order mutation Nos.1937 and 1939 were entered in their favour.

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On the similar facts, an application for ad interim injunction order under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short `the Code') was also filed by plaintiffs, which was dismissed and another application filed by them under Order 1 Rule 10 of the Code for impleading some other persons as a party, was also dismissed on 3.12.2010 and earlier application for amendment filed by petitioner-plaintiff was allowed vide order dated 13.1.2011 by learned trial Court. Issues were already framed and the case was fixed for evidence of petitioner-plaintiff when the present application for amendment has been filed.

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Now by way of amendment, petitioner-plaintiff wants to take the plea that the land in dispute was never given on Batai to father of

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Civil Revision No.3445 of 2011(O&M)

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defendants or to defendants, which was declined by learned trial Court by observing that petitioner-plaintiff cannot be permitted to withdraw the admission already made in the pleadings to the effect that earlier father of defendants was in possession as tenant on Batai-Tihai and thereafter, respondents-defendants came in possession of the same.

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Law is well settled that after commencement of trial, amendment is not to be allowed, unless the same is necessary for the purpose of determining the real question in controversy between the parties. Learned trial Court has given sufficient reasons in the impugned order for coming to the conclusion that amendment is not required for determining the real question in controversy between the parties and rather the petitioner-plaintiff intends to withdraw the admission already made in the original plaint, regarding defendants being in possession as tenant of the land in dispute on Batai-Tihai, which cannot be permitted. On the point reliance can be placed upon Vidyabai and others v. Padmalatha and another , 2009(1) RCR (Civil) 763.

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In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

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Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

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Civil Revision No.3445 of 2011(O&M)

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“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”

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Hence, the present revision petition is, hereby, dismissed being

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devoid of any merit.

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24.5.2011 (Ram Chand Gupta) meenu Judge

Om Parkash v. Raghubir & Ors.

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Om Parkash v. Raghubir & Ors.

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