Ajmer Singh vs Kavita Rani and others

The petitioner-defendant challenges the order dated 6.2.2017

passed by the Civil Judge (Junior Division), Nabha (Annexure P/4) whereby

the application by which the plea of adverse possession was sought to be

taken in the written statement at the stage of rebuttal and arguments was

dismissed.

The said application has been dismissed on the ground that

case had been fixed for final arguments and counsel for the present

petitioner had sought adjournments for addressing arguments. The issues

were framed on 7.5.2015 and the trial having been completed, amendment

was not permissible as on an earlier occasion also one application under

Order 6 Rule 17 of the Code of Civil Procedure, 1908 had been moved.

Reliance was placed upon the judgment of the Apex Court in J.S.Samuel

Vs. Gattu Mahesh AIR 2012(1) RCR Civil 903 (SC) to hold that there

was no due diligence apart from the fact that a inconsistent plea was being

taken was also one of the factor which weighed with the trial Court.

Counsel for the petitioner submits that the mutually destructive

pleas can be taken and the other side could be compensated by payment of

costs. Reliance has been placed upon the judgment of the Apex Court in

L.C.Hanumanthappa (since dead) represented by his L.Rs. Vs.

H.B.Shivakumar 2016 (1) SCC 332 and judgments in Mahi Pal and

another Vs. Sohan and others 2016(2) LAR 629 and Jaimal and others

Vs. Uttamjit Singh and others 2017(1) R.C.R. (Civil) 782. He further

submits that he will not lead any such evidence and there will be no delay

in the proceedings.

In the present case, respondent no.1-plaintiff has filed suit for

possession of a residential house in question on the ground that there was a

registered sale deed in her favour from one Tarlochan Singh. The said

vendor had purchased it from one Ram Singh on 18.2.1946. The present

petitioner was stated to be living in the adjoining house and therefore, she

was in illegal occupation of the premises in question. The defence of the

defendant-petitioner was that the sale deed dated 17.1.2007 was illegal null

and void without consideration and Tarlochan Singh never remained in

possession of the suit property and he was not competent to deliver

possession of the said house. The defendants were in actual physical

possession. The specific plea was taken that they were owners and in

possession of the house in question in paragraph no.6 of the written

statement (Annexure P/2) and the plaintiff had no right or title over the

property. Once the specific stand has been taken that they were owners, the

plea of adverse possession cannot be permitted which would be contrary to

their stand. They were aware of their position as such at an earlier point

of time and therefore, the plea of adverse possession is always against the

true owner. By virtue of the said stand, certain rights have accrued to the

respondent/plaintiff and thus by allowing the amendment admission as such

of being owner, onus of which will be upon them which had been made by

the defendants will be sought to be taken away which cannot be permitted.

In such circumstances, the judgments relied upon are not

applicable to the facts of the present case. In Mahi Pal''s case (supra),

reference has been made to Revajeetu Builders & Developers Vs.

Narayanaswamy & sons and others (2009) 10 SCC 84 wherein the

principles have been laid down which read as under:-

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fraudulently changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

It has been specifically held that where the amendment is not

bonafide in nature and malafide such amendments are not to be permitted.

The present case is such a case where fraudulently the nature and character

of the case is being sought to be changed.

Keeping in view the above discussion, the trial Court is well

justified in dismissing the application for amendment and the impugned

order dated 6.2.2017 (Annexure P/4) does not suffer from any infirmity and

illegality which would warrant interference by this Court in exercise of

revisional jurisdiction in limine.

Accordingly, the present revision petition is dismissed.