Allowed

Harish Chandra v. Gulab Devi and Ors.

Rajasthan HC3 Mar 2014CW/1483/2014

Case brief

AI extract

What is this about?

This bench allowed a writ petition by a petitioner-plaintiff challenging the trial court's dismissal of his application to amend the plaint. The High Court set aside the impugned order permitting the amendment of the prayer clause to include a request for cancellation of a sale deed, imposing conditions regarding costs and further evidence.

What did the court decide?

Impugned order set aside; petitioner permitted to amend plaint subject to payment of Rs.25,000 costs and conditions that no further evidence be led but recall of witnesses allowed.

Harish Chandra Vs Gulab Devi and Ors. — Property and Title | Rajasthan HC (2014)

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(1)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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O R D E R

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S.B. CIVIL WRIT PETITION NO.1483/2014 (Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr. )

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Date of Order : 03.03.2014

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HON'BLE MS. JUSTICE BELA M. TRIVEDI

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Mr. R.B. Mathur, for the plaintiff-petitioner. Mr. A.K. Bajpai, for the defendant No.1-respondent No.1. Mr. Rishi Parashar, for the defendant No.1-respondent No.2.

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BY THE COURT

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1. With the consent of the learned counsel for the parties, the writ petition is being decided finally at the admission stage.

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2. The petitioner-plaintiff has filed this writ petition challenging the order dated 17.01.2014, passed by the Additional District Judge No.2, Jaipur District, Jaipur (hereinafter referred to as 'the trial court') in civil suit No.23/1997, whereby the trial court has dismissed the application of the petitioner-plaintiff seeking amendment in the plaint under Order VI Rule 17 of CPC.

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3. In the instant case, it appears that the petitionerplaintiff and the respondent No.2-defendant No.2, are the real brothers. The suit has been filed by the petitioner-plaintiff against the respondents-defendants seeking the possession, permanent injunction and mesne profits in respect of the suit property, alleging inter alia that the suit property was

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(2)

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bequeathed by the father of the petitioner-plaintiff by way of will dated 11.06.1984 in his favour. The father of the petitionerplaintiff died on 09.04.1985. It is also alleged that in the year 1981, the petitioner-plaintiff and his father had filed a suit for partition against the respondent No.2-defendant No.2 in respect of another property, in which the preliminary decree was prepared, and that the respondent No.2-defendant No.2 had also filed a suit for partition in the year 1988 against his family members and the petitioner-plaintiff. According to the petitionerplaintiff, the suit property belonged to him, as per the will executed by his father in his favour, however the respondent No.2-defendant No.2 had executed the sale-deed dated 21.11.1994 in favour of the respondent No.1-defendant No.1, about which the petitioner-plaintiff came to know on 15.04.1995, when the respondent No.1-defendant No.1 was trying to put construction of a wall on the suit plot. It appears that the said suit was resisted by the respondents-defendants by filing the separate written statements and after framing of the issues by the trial court, the petitioner-plaintiff had also led his evidence. At this stage, the petitioner-plaintiff sought amendment in the plaint by submitting the application, praying to amend the relief clause in the plaint by incorporating the prayer for cancellation of the sale-deed dated 21.11.1994 executed by the respondent No.2-defendant No.2 in favour of the respondent No.1-defendant

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(3)

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No.1. The said application was resisted by the respondentsdefendants by filing a reply thereto raising various contentions. The trial court, vide its impugned order dated 17.01.2014, has dismissed the said application. Being aggrieved of the same, the petitioner-plaintiff has filed the present petition.

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4. It has been sought to be submitted by the learned counsel, Mr. R.B. Mathur, for the petitioner-plaintiff that by way of the proposed amendment, the petitioner-plaintiff is seeking amendment in the prayer clause only of the plaint, which would not change the nature of the suit. According to him, the necessary averments have already been made by the petitionerplaintiff in the plaint itself with regard to the sale-deed, and that the petitioner-plaintiff also does not intend to lead any further evidence, if the proposed amendment is allowed. Reliance has been placed to the latest decision of the Apex Court in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. [2012 (2) WLC (SC) Civil 700] to submit that the amendment, which does not change the nature of the suit, should be allowed. He has also relied upon the decision of the Apex Court in the case of State Bank of Hyderabad Vs. Town Municipal Council [2007 (2) SCC 339] to submit that the suit having been filed in the year 1994, the proviso to Order VI Rule 17 of CPC would not apply to the suit. However, the learned counsels, Mr. A.K. Bajpai, for the respondent No.1-defendant No.1 and Mr. Rishi Parashar, for the

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(4)

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respondent No.2-defendant No.2, have vehemently submitted that the amendment has been sought by the petitioner-plaintiff in the prayer clause for cancellation of the sale-deed dated 21.11.1994, after 20 years of the filing of the suit and that too after the completion of the evidence of the petitioner-plaintiff. Pressing into service the provisions contained in Order II Rule 2 of CPC, the counsel for the respondents-defendants submitted that the petitioner-plaintiff having omitted to seek prayer with regard to the cancellation of the sale-deed at the time of the institution of the suit, it would be deemed that the petitionerplaintiff had relinquished that relief. Relying on the decision of the Apex Court in case of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. [AIR 1957 SC 363], it is submitted that the amendment taking away the right accrued to a party by lapse of time should not be allowed.

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5. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, as also the other documents on record, it transpires that the amendment has been sought by the petitioner-plaintiff in the prayer clause of the plaint, seeking incorporation of the prayer for cancellation of sale-deed dated 21.11.1994 executed by the respondent No.2-defendant No.2 in favour of the respondent No.1-defendant No.1, after elapse of about 20 years to the filing of the suit and that too after the evidence of the

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(5)

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petitioner-plaintiff was over. The Court therefore finds substance in the submission made by the learned counsel for the respondents-defendants that such an amendment at such a belated stage should normally not be allowed. It also appears that the petitioner-plaintiff had not explained the delay in the application seeking amendment, nor had stated the reasons for seeking the amendment. However, it is pertinent to note that the petitioner-plaintiff is seeking amendment only in the prayer clause of the plaint and does not want to lead any further evidence in that regard. The Apex Court in the case of Abdul Rehman (Supra) , relied upon by the learned counsel for the petitioner-plaintiff, had also allowed the amendment in similar circumstances by observing that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction would not change the basic nature of the suit. At this junction, it is required to be noted that the petitioner-plaintiff has already made the averments in the plaint challenging the authority of the respondent No.2-defendant No.2- to execute the sale-deed dated 21.11.1994 in favour of the respondent No.1-defendant No.1 and that the petitioner-plaintiff has also paid the requisite court fees.

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6. For the reasons stated above, the Court is of the opinion that the impugned order passed by the trial court deserves to be set aside, subject to the payment of cost of

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S.B. CIVIL WRIT PETITION NO.1483/2014 Harish Chandra Vs. Gulab Devi (since dead) through Lrs. & Anr.

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(6)

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Rs.25,000/- to be paid by the petitioner-plaintiff to the respondents-defendants on or before 12.03.2014 before the trial court, and subject to the conditions to the effect that the respondents-defendants shall be at liberty to file amended written statement in view of the amendment sought in the plaint if they desire to file, and that the trial court shall be at liberty to frame additional issues if any, on the contentions that may be raised by the respondents-defendants in their amended written statement, however, the petitioner-plaintiff shall not be entitled to lead any further evidence on the said amendment and that the respondents-defendants shall be at liberty to recall the witnesses of the petitioner-plaintiff already examined, for their crossexamination on the amended plaint, if they desire to do so. 7. On these conditions and directions, the impugned order is set aside and the petitioner-plaintiff is permitted to amend the plaint as sought for. The petitioner-plaintiff shall pay the cost of Rs.25,000/- to the respondent-defendants before the trial court on or before 12.03.2014.

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8. The petition stands allowed accordingly.

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(BELA M. TRIVEDI), J

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MS/-

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.

Harish Chandra v. Gulab Devi and Ors.

Case brief

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Harish Chandra v. Gulab Devi and Ors.

Case brief

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