Harbheg Singh and Another vs Darshan Ram and Others

M.M. Kumar, J.—The defendants have approached this Court by invoking the provisions of Section 115 of the Civil Procedure Code,

1908 (for brevity, ""the Code"") and have challenged the interlocutory order dated 21.3.2002 passed by the learned Lower Appellate Court

dismissing their application preferred under Order 6 Rule 17 of the Code, seeking amendment of the plaint at the stage when their appeal u/s 96 of

the Code was pending before the Lower Appellate Court.

Brief facts of the case are that the plaintiff-respondent filed a suit for possession seeking a declaration that they were owners to the extent of

4/5th share and also sought partition in equal share to the extent of l/5th share. A further declaration was sought that defendant-respondent No.5

Smt. Baksho widow of Chaman Lal is a co-owner to the extent of l/5th share in respect of premises marked as ABCD in the site plan attached

with the plaint. The plaintiffs also challenged the sale-deeds dated 17.4.1995 executed by defendant-respondent No.5 Smt. Baksho in favour of

the defendant-petitioners. It is appropriate to mention that the plaintiff-respondents also asserted that they were the offsprings of marriage of

Chaman Lal with Smt. Nirmala and after the death of Nirmala, Chaman Lal married Smt.Baksho defendant-respondent No.5. Smt. Baksho

(defendant-respondent No.5) alongwith defendant-respondent No.6 Mukhtiar Singh set up the plea that plaintiff-respondents were not related to

Chaman Lal in any manner, who had died on 11.9.1997

The defendant-petitioners filed a written statement by taking the stand that they are bona fide purchaser and have purchased 2/3rd of the

property in dispute from Smt.Baksho defendant-respondent No.5 vide registered sale-deed dated 17.4.1995 for a valuable consideration of Rs.

17,000/-. It was further claimed that defendant-petitioner No.2 has purchased l/3rd share of the property in dispute from Smt. Baksho vide

registered sale-deed dated 17.4.1995 for a valuable consideration of Rs.8000/-. According to the pleadings in the written statement, defendant-

petitioners have claimed to be in possession to the extent of their share. They have further claimed that Smt.Baksho defendant-respondent No.5

has been the exclusive owner in possession of the property in dispute and, therefore, both the defendants-petitioners are in possession, who are the

bona fide purchaser from her.

During the course of evidence it transpired that defendant-respondent Smt.Baksho had also filed a civil suit No.266/1993 dated 8.6.1993

wherein she had set up a Will dated 30.7.1986 executed by Chaman Lal in her favour. The aforementioned suit, however, was dismissed as

withdrawn. The suit of the plaintiff-respondents from which the instant petition has arisen, however, was decreed and the defendant-petitioners

filed an appeal u/s 96 of the Code. During the pendency of the aforementioned appeal, an application under Order 6 Rule 17 of Code was filed in

which prayer was made that Sh.Chaman Lal husband of defendant-respondent No.5 Smt.Baksho had executed a legal and valid Will dated

30.7.1986 in her favour and accordingly she had become absolute owner of the suit property to the exclusion of other heirs like the plaintiff-

respondents. It was sought to be incorporated by way of amendment that plaintiff-respondents never challenged the title of Smt.Baksho defendant-

respondent No.5 in respect of the suit property and in fact had admitted her as its owner. They further claimed that inadvertently, in the written

statement, they could not plead that the possession of Mukhtiar Singh was in his capacity as a tenant which emanates from the decision of the civil

suit No.64 of 20.11.1993 in the case titled as Mukhtiar Singh v. Smt. Baksho, decided by the trial court on 12.6.1995. The inadvertence has been

cited as a reason for pleading that the defendant-petitioners were in possession of the suit property instead of mentioning that they were in

constructive possession through defendant-respondent No.6 Mukhtiar Singh, who has been a tenant under them. The Will dated 30.7.1986 was

also sought to be relied upon by pleading the same as the basis of their assertion that she had become the absolute owner of the property.

The application was contested and the learned Lower Appellate Court dismissed the same by observing as under :-

9.---------that the appellants/defendants cannot be allowed to take up a plea which has not been pressed into service by the

respondent/defendant Smt. Baksho although she had the occasion and the opportunity to put forth the same firstly, when the respondent/plaintiff

Darshan Ram had applied u/s 372 of the Indian Succession Act for the grant of the succession certificate in respect of the debts of the deceased

Chaman Lal before the court of Sh. Mrigainder Singh, Ld, Addl. District Judge (1) Shimla as would appear from Ex.PW4/E, the copy of the

judgment passed by the said court on 9.3.1992 is in I.S.A. No.1-S/2 of 1988 titled as Darshan Vs. General Public, Smt.Baksho and others and

secondly, when she had the opportunity to take up the said plea in this case when she filed the written statement alongwith the appellant/defendant

Mukhtiar Singh. It is important to note that respondent/defendant Smt. Baksho in the written statement filed jointly with defendant Mukhtiar Singh

denied the title of Chaman Lal in the suit property and asserted herself to be the owner of the same. Now the present appellants/defendants cannot

be allowed to take up the plea for which they have got no locus standi.

As regards the other plea sought to be taken up by the appellants/defendants in the written statement so as to allege that Mukhtiar Singh was in

possession of the suit property as a tenant under Smt.Baksho, already the copy of the judgment passed by the court of Smt.Amarjot Kaur, Ld.

Sub Judge 1st Class, Phillaur in Civil Suit No.64 of 20.11.1993 titled as Mukhtiar Singh Vs. Smt. Baksho as Ex.Dl has been tendered in evidence

and there is no need to allow the appellants/defendants to make an amendment in the written statement as the same is not considered the least

necessary for adjudication of the controversy involved in the case completely and effectually. The controversy involved in the case pertains to the

separation of the share of the plaintiffs by way of partition, in which they claim to have got 4/5th share and that l/5th share is got by Smt.Baksho.

Under these circumstances, no case is made out for allowing the proposed amendment. The application is dismissed accordingly.

Mr. G.S.Sandhawalia, learned counsel for the defendant-petitioners has argued that the Trial Court while decreeing the suit in favour of the

plaintiff-respondents has made an expressed reference to the suit filed by Smt. Baksho defendant-respondent No.5 in which he has placed reliance

on the Will dated 30.7.1986. However, the same Will has been suppressed by Smt.Baksho defendant-respondent No.5 in her written statement

which she has filed along with Mukhtiar Singh in the present proceedings. Learned counsel has argued that defendant-petitioners have been bona

fide purchasers of the property in dispute and for the reasons best known to Smt.Baksho. Their vendor, the factum that she was owner only to the

extent of l/5th share has been suppressed with mala fide intention to cause prejudice to the rights of the defendant petitioners. If the said Will is

permitted to be relied then the defendant-petitioners may be in a position to establish that their vendor was exclusive owner of the property in

dispute and the suit filed by plaintiff-respondent Nos. 1 to 4 would not be maintainable for obtaining a decree for possession after partition

alongwith declaration of setting aside the sale-deeds. According to the learned counsel the amendment is necessary for effective adjudication of the

controversy between the parties and also to avoid multiplicity of proceeding. For the aforementioned proposition, learned counsel has plated

reliance on a judgment of this Court in Sukhdev Singh v. Chhajju 1994 PLJ 326 and argued that question of amendment of written statement

would arise after the plaintiff produced the documents. In such cases the amendment could be allowed even at the appellate stage. Learned

counsel has maintained that illiteracy of the litigants and their dependence on the counsel, should also be a factor for considering such like

applications He has then submitted that the reasoning adopted by the learned Lower Appellate Court based on the written statement filed by Smt.

Baksho defendant-respondent No.5 that she herself failed to rely upon the Will in her written statement would not be correct because such a

failure on the part of Smt.Baksho defendant-respondent No 5 would not cause her any prejudice as the rights of the defendant-petitioners are

likely to be adversely affected Learned counsel has emphasized that once exclusive right of Smt Baksho to sell the property in dispute on the basis

of Will is established then plaintiff-respondent Nos. 1 to 4 would not have any cause of action to file the suit.

Mr.O.P.Hoshiarpuri, learned counsel for the plaintiff-respondent Nos.1 to 4 has argued that the order passed by the learned Lower Appellate

Court rejecting the prayer of the defendant-petitioners, for amendment of the written statement, has expressly recorded a finding that the

amendment is not necessary for effective adjudication of the rights of the parties. According to the learned counsel, no amendment at the appellate

stage, could be allowed as the whole case of the plaintiff-respondents is likely to be prejudiced and a de novo trial would commence

After hearing the learned counsel for the parties, I am of the considered view that this petition deserves to succeed. A close scrutiny of the order

passed by the Lower Appellate Court would reveal that on two occasions defendant-respondent No 5 Smt.Baksho had failed to set up the Will

dated 30.7.1986. The first occasion mentioned is when she had filed an application u/s 372 of the Indian Succession Act, 1925 for the grant of

succession certificate in respect of debts of her husband Chaman Lal, which resulted into passing of the judgment by the learned Addl. District

Judge (I) Shimla (Ex PW4/E), on 9.3.1992. The second opportunity referred is when she had filed the written statement. Firstly the

aforementioned reasons in respect of defendant-respondent No 5 have got nothing to do with the defendant-petitioners. Secondly defendant-

respondent No.5, in any case, has asserted herself to be the owner of the suit property although denying the title of Chaman Lal, her husband.

Thirdly by copy of the plaint Ex.PW3/A it is indicated that defendant-respondent No.5 Smt.Baksho had filed a suit based on the Will dated

30.7.1986 Moreover, the defendant-petitioner cannot be made to suffer because of the failure of defendant-respondent No 5 to set up the plea of

Will because it is the interest of defendant-petitioners which are at stake and not that of defendant-respondent No.5, who has sold the property to

the defendant-petitioners. 1 am unable to agree with the Lower Appellate Court that the defendant-petitioner has no locus-standi to incorporate

the amendment and that the prayer is liable to be declined on the ground that the controversy involved in the suit is separation of share of the

plaintiff-respondent Nos. 1 to 4 by way of partition from the share of defendant-respondent No.5 Smt.Baksho It is well settled that the Courts are

more liberal in allowing amendment of the written statement as the question of prejudice is unlikely to arise in that event. A reference in this regard

may be made to the judgment of Supreme Court in B.K.N. Narayana Pillai Vs. P. Pillai and Another, The view of the Supreme Court is

discernible from concluding portion of para No.4 of the judgment, which reads as under:-

4.........The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment

the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the

pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not

alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations

in negation to the admission position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of

amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No

amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse

of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not

fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

The aforementioned principle has also been followed in the case of Prem Bakshi and Others Vs. Dharam Dev and Others, . The Supreme Court

has observed that ordinarily the amendment in the pleadings are not likely to cause failure of justice or irreparable injury to any party. In this regard

reference may be made to para No.6 of the judgment and the same reads as under-6. Now the question is whether the order in question has

caused failure of justice or irreparable injury to respondent 1. It is almost inconceivable how mere amendments of pleadings could possibly cause

converse is possible i.e. Refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all, amendments

of the pleadings would not amount to decision on the issue involved. They only would serve advance notice to the other side as to the plea, which a

party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even

remotely cause failure of justice or irreparable injury to any party.

Even otherwise I am of the considered view that the Will dated 30.7.1986 would be necessary for effective adjudication of the issues involved

as the plaintiff-respondent Nos.1 to 4 have sought cancellation of sale-deeds dated 17.4.1995. The issue with regard to partition is also likely to

be influenced either way by the Will dated 30.7.1986. Therefore, the view taken by the learned Lower Appellate Court does not deserve to be

up-held.

For the reasons aforementioned this petition succeeds. The impugned order dated 21.3.2002 passed by the learned Lower Appellate Court is

set aside. The petitioners are permitted to make amendments in their written statement to the extent of plea of Will dated 30.7.1986. It is needless

to observe that plaintiff-respondent Nos. 1 to 4 and other parties would be entitled to corresponding right of filing their pleadings in accordance

with law. The amendment is allowed on payment of Rs.5000/- as cost, which is to be paid to plaintiff-respondent Nos.1 to 4. The learned Lower

Appellate Court should ensure that before accepting the amendment on record the payment of cost has been made to plaintiff-respondent Nos. 1

to 4.

The parties through their counsel are directed to appear before the Lower Appellate court on 6.2.2006.