Hari Chand vs Mangal Singh and others

G.C. Mital, J. (Oral)

This order will dispose of Civil Revision Nos. 2134 to 2136 of 1983, as common question of law arises, therein.

Three sets of different vendors sold their agricultural land by three different sale deeds dated 28th May, 1980 in favour of one set of 15 vendees. On 23rd May, 1981 three separate suits for preemption were filed by the near relations who were entitled to preempt the sale on account of relationship. The name of one of the vendeedefendants was mentioned as Sunder Singh son of Gurbachan Singh in all the three suits. Sunder Singh was arrayed as defendant No. 10. On 16th October, 1981 defendant No. 8 only filed written statements in all the three suits and took up vague pleas of misjoinder and nonjoinder of parties and suit being for partial preemption. The remaining vendee other than defendants Nos. 8 and 10 filed separate written statements on 30th July, 1982. In that written statement, the following specific objections were raised in paragraphs 3 and 4 of the additional objections of the written statement :

"3. That in the title of the plaint, Sunder Singh minor son of Gurbachan Singh has been shown as defendant at serial No. 10. In fact, no person with the name of Sunder Singh who purchased the suit land; as such the suit is bad for misjoinder of necessary parties.

That one Minder Singh who is one of the vendees has not been impleaded as a party although his name stands included in the sale deed and hence the suit is bad for nonjoinder of necessary parties".

In spite of specific objections in the written statement that Minder Singh was one of the vendees and not Sunder Singh, instead of applying for correction of the name forthwith, on 20th September, 1982 the preemptors filed replication and their reply to the aforesaid paragraphs Nos. 3 and 4 was as follows :

" ... ... that Minder Singh son of Gurbachan Singh son of Gian Singh is called Sunder also. He is defendant No. 10 ... ... In the sale deed Sunder Singh is written and Minder Singh can be read also and nowhere Minder Singh is written. Hence Sunder Singh is the same person as per father and grandfather''s name."

A reading of the replication shows that the stand of the plaintiffs was that Sunder Singh and Minder Singh is one and the same person. On the aforesaid contest of the parties, issue No. 3 was framed as follows:

"Issue No. 3 Whether the suit is bad for the misjoinder and nonjoinder of necessary parties as alleged in paras 3 and 4 of the additional objections of the written statement."

On 30th May, 1983 Gurbachan Singh guardian of Sunder Singh appeared as a witness and made a statement that he has two sons one of whom is Sunder Singh and the other is Minder Singh. On the following day i.e. 1st June, 1983, the plaintiff filed separate application in each suit for amendment of the plaint to bring the name of Minder Singh in place of Sunder Singh. The application was contested by the vendors who pleaded that they had taken specific objection in the written statement filed in the court on 30th July, 1982 and had pointed out the mistake and in spite of that in the replication the plaintiff insisted that Sunder Singh and Minder Singh are names of the same person on which the issue was framed, on 21st September, 1982, which has been quoted above, and, therefore, now there is no ground for allowing amendment of the plaint because vested right has accrued to the vendees on account of limitation. The Court below disallowed the application by orders dated 26th July, 1983. Before the trial Court the plaintiffs had relied on Munshi Ram v. Narsi Ram and another, A.I.R. 1983 S.C. 271, but that case was distinguished by the Court below. These are plaintiff''s revisions against the aforesaid orders.

After hearing the learned counsel for the parties I am of the view that the Court below has not committed any illegality or irregularity which may call for interference in the revisional jurisdiction. The preemptors'' cases have to be considered at slightly different plank visavis all other litigations. Even a minor has not been permitted to claim benefit of his minority in filing the preemption suits. See Section 8 of the Limitation Act, 1963. It has been ruled by the Supreme Court that a preemption suit can be defeated by all legitimate means. Although right of preemption is a statutory right but it has been considered to be practical right. In this background the matter has to be strictly construed against the preemptor. He has to be vigilant and if does not prove his bona fide, no indulgence would be shown to him. Present case is one where the application is neither bona fide nor the plaintiff has shown vigilance at the proper stage.

Before I reiterate the facts of the present case the facts of Munshi Ram''s case (supra) deserve to be noticed. In that case the preemptor obtained certified copy of the sale deed, which contained names of two vendees. In the suit which he filed for preemption he impleaded both those vendees and the certified copy of the sale deed which he had obtained was attached with the plaint. The vendees appeared and they took vague plea that all the vendees who had purchased the land had not been impleaded and thus the suit was for partial preemption. The preemptor filed a replication and in that he pleaded that the defendant''s contention was untenable as all the vendees have been impleaded. He further pleaded that the defendants should disclose the names of all other vendee or vendees, who, according to them, had not been impleaded as defendants to the suit. The aforesaid reply was filed on the basis of certified copy of the sale deed produced by the plaintiff in Court. Before the issues were framed on 14th June, 1978 the counsel for the vendees read out the original sale deed in which it had been written that one Munni Devi wife of Om Parkash was also the vendee along with the two impleaded defendants. Accordingly an issue about the nonjoinder of the necessary parties and for partial preemption of the suit was framed. On the very next day i.e. 15th June, 1978 the preemptor filed an application under Order 1 Rule 10 read with Order 6 Rule 17 of the Code of Civil Procedure, to implead the left out vendee on the precise plea that her name was not included in the certified copy of the sale deed provided to the plaintiff nor her name was disclosed till 14th June, 1978 and the moment it was disclosed, without loss of time on the very following day the application was filed. Therefore, on these facts it was concluded that the mistake was bona fide and the amendment deserved to be allowed.

Adverting to the facts of the present case, the mistake was brought to the notice of the plaintiff on 30th July, 1982 by specifically saying that Sunder Singh was not a vendee and that Minder Singh was a vendee who had not been impleaded. On 20th September, 1982 replication was filed in which the plaintiff insisted that Sunder Singh and Minder Singh are one and the same person on which an issue was framed on 21st September, 1982. Therefore, filing of an application dated 1st June, 1983 for amendment of the plaint was clearly not bona fide and valuable right had accrued to the vendees because by that time the suit for preemption had become a suit for partial preemption in the absence of one of the necessary vendees. Therefore, it is a case where no indulgence can be shown to such a defaulting party and the Court below was right in declining the amendment of the plaint.

Even if amendment of the plaint was allowed by me I would not have impleaded Minder Singh as a defendant with effect from the date of filing of the original plaint but would have added him as a party with effect from the date of filing of the application i.e. 1st June, 1983. Even then the resultant effect would have been that the suit for preemption on 1st June, 1983 would have been beyond the period of limitation. Proviso to section 21(1) of the Limitation Act, 1963 empowers the Court to implead a party from a deemed earlier date on being satisfied that the omission to implead the party was due to a mistake made in good faith. As already held by me the mistake was not in good faith and therefore it is not a case in which the benefit of proviso can be given to the plaintiffs in these cases. The preemptors in these cases must suffer for their insistence and for the delay which took place between the period 30th July, 1982 and 1st June, 1983 and in any event for the delay between 20th September, 1982 and 1st June, 1983.

For the reasons recorded above, all these revisions are devoid of merit and are dismissed with costs.