Dismissed

Panna Datt Gautam v. Subhash and Ors.

Punjab & Haryana HC8 Feb 2012CR/6126/2011

Case brief

AI extract

What is this about?

This civil revision petition challenged the dismissal of an application to amend the plaint under Order 6 Rule 17 CPC by the first appellate court. The High Court held that since the trial was concluded and a decree passed, allowing the amendment would cause prejudice. The court found the amendment unnecessary as the core issue of possession did not depend on the specific land measurement claimed.

What did the court decide?

The revision petition was dismissed, and no ground for interference was found regarding the dismissal of the amendment application.

Panna Datt Gautam Vs Subhash and Ors. — Property and Title | Punjab & Haryana HC (2012)

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Civil Revision No.6126 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.6126 of 2011 Date of decision 08.2.2012.

Panna Datt Gautam

...... Petitioner.

versus

Subhash and others

...... Respondents.

CORAM:- HON'BLE MR. JUSTICE K.C. PURI

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present : Mr. Sanjay Majithia, Senior Advocate with Mr. Surya Kant Gautam, Advocate for the petitioner. Mr. Parminder Singh, Advocate for respondent No.1, 2 & 4.

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K.C.PURI . J.

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Challenge in this revision petition under Article 227 of the Constitution of India is the order dated 2.9.2011 passed by Ms. Vani Gopal Sharma, Additional District Judge, Panipat vide which the application of the plaintiff to amend the plaint only to the effect of inserting all the numbers of the land jointly owned by the parties to the suit as the legal representatives of the defendant No.2 in appeal filed by them, was dismissed.

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Civil Revision No.6126 of 2011

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Briefly stated the plaintiff filed suit for permanent injunction restraining the defendants from interfering in his peaceful exclusive possession over the land comprising in Khewat No.224 Khatauni No.285 rect. No.160 as detailed in the head note of the plaint. It has been further averred that plaintiff is in actual cultivating possession of the particular numbers detailed in head note of the plaint. Defendant no.2 has not controverted the assertions in the plaint in his written statement. However, defendant No.1 Jagdish in his written statement asserted his own possession over the suit property. It is further submitted that defendant Jagdish, in his written statement asserted his own possession over the suit property. It is further submitted that that defendant Jagdish vide his statement dated 18.10.2002 had admitted the plaintiff's actual cultivating possession over the suit land except the land falling in Rect. No.144, Killa No.25(7-8) and 224/202, Killa No. 16(7-8). It is submitted that the defendants never stepped into witness box to give statement on oath even availing ample opportunities and their evidence was closed by order of the Court on 17.11.2006. Thereafter, defendants were allowed to produce copy of jamabandi and mutation, by way of additional evidence, vide order dated 11.10.2007 and the documents were tendered in evidence reflecting the plaintiff and defendants as owners in possession of agricultural land measuring 336K-13M. However, defendant no.1, who is hotly contesting the suit, has admitted in corresponding para no.1 of the written statement that plaintiff and both defendants are enjoying 364K-13M land, but now defendants, by producing jamabandi Ex.D-1, claimed that 336K-13M land is in joint possession, thereby creating doubt in the mind of the Court that

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Civil Revision No.6126 of 2011

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the total agricultural land is not 364K-13M, rather 336K-09M, cleverly withholding the relevant jamabandis.

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It is submitted that the applicant had earlier filed an application before Assistant Collector Ist Grade seeking severance of joint title and actual separate possession over particular numbers. The subject matter of that application was land measuring 357K-15M, including 21K-6M recorded as owned by the State Government, regarding which litigation is still pending.

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Defendant Jagdish hotly contested the relief of partition by filling reply claiming that the land had already been partitioned. He also took objection that the land recorded as owned by the State Government, can not be partitioned. Similarly, another piece of land falling in khasra No.182 measuring 15K-11M, wrongly recorded as Wakf property, was also in cultivating possession of the predecessor in interest of the parties to the present litigation and in this manner, the parties and their predecessor in interest have been enjoying the cultivating possession over 364K-13M land. As such, defendants have been taking shifting stand and creating confusion regarding actual area of the suit land. The said suit was resisted and ultimately the suit was partly dismissed vide judgment and decree dated 19.5.2008.

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Feeling dissatisfied with the above said judgment and decree of dismissal of suit, the plaintiff preferred the First Appeal.

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In the first appeal, the plaintiff filed an application under Order 6 Rule 17 of the CPC so as to take the aforesaid plea.

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That application was resisted by the defendants/respondents

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Civil Revision No.6126 of 2011

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and vide the impugned order, the application was dismissed.

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I have heard the counsel for the petitioner and have gone through the file of the case.

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Learned counsel for the petitioner has submitted that through the proposed amendment the plaintiff/petitioner simply wants to plead that joint khatta is of 364K-13 M and the plaintiffs are in exclusive possession of the suit property. It is further contended that in written reply it has been admitted by the defendants/respondents that joint khatta is of 364K-13 M. The only dispute raised by the defendant is that plaintiff is in possession of lessor area in the joint khatta. So, the proposed amendment is essential for the just decision of the case.

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I have given my thoughtful consideration to the rival submissions made by learned counsel for the petitioner.

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The Parliament in its wisdom has made amendment in Order 6 Rule 17 has added proviso that no application for amendment would be allowed after the trial is commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

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In the present case, the trial has been concluded by the trail Court and the parties are before the First Appellate court. No doubt, as per order 6 Rule 17 of the CPC amendment can be allowed at any stage but after the decision of the trial Court a valuable right has accrued in favour of a party and that right of the party cannot be taken away lightly.

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Now reverting to the case of the plaintiff is that he wanted to take the plea that joint khatta is of 364K-13 M and that fact has been

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Civil Revision No.6126 of 2011

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admitted by the defendants. The only point left to be determined is whether the plaintiff is in exclusive possession of the land as detailed in the heading of the plaint. It is settled law that if a co-sharer is in exclusive possession of land even more than his share shall be entitled to retain the possession till the land is actual partitioned. So, the proposed amendment is not essential for the just decision of the case. Although during the course of arguments counsel for the petitioner has submitted that he would not lead any evidence after the proposed amendment is allowed but the fact remains that defendant cannot be deprived from taking other pleas after amendment. The amendment would reopen the case which has already been decided by the trial Court. The first appellate Court has rightly held that the point in issue raised by the petitioner/appellant can be adjudicated even in spite of the amendment.

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Leaned counsel for the petitioners has relied upon authority Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patial and others reported in AIR 1957 Supreme Court 363(1) on the strength of the same

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it is argued that no prejudice would be caused to the defendant and so the amendment should be allowed.

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I have carefully considered the said submission but do not find any force.

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The ultimate conclusion drawn by Hon'ble Apex Court in authority Pirgonda Hongonda Patil's case (supra) regarding amendment is as under :-

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“All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and

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Civil Revision No.6126 of 2011

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(b) of being necessary for the purpose of determining the real questions ins controversy between the parties ... but I refrain from citing further authorities, as in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it , is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by sitting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused ; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not ?”

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On the facts of the present case, the defendants would be deeply prejudiced as the decree has already been passed in their favour. Otherwise also, it hardly makes any difference for the decision of the present case whether the joint khatta is of 364K-13M or of 336K-13 M, as the suit is not for declaration of title of the parties.

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So, in these circumstances, no ground for interference.

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Consequently, the petition is without any merit and the same stands dismissed.

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Civil Revision No.6126 of 2011

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A copy of this judgment be sent to the trial Court for strict

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compliance.

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( K.C.PURI ) JUDGE

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February 08, 2012 sv

Panna Datt Gautam v. Subhash and Ors.

Case brief

What is this about?

What did the court decide?

Panna Datt Gautam v. Subhash and Ors.

Case brief

What is this about?

What did the court decide?

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