Karnail Singh and another vs Pal Singh and others

J.V. Gupta, J.—This order will also dispose of Civil Revision No. 57 of 1988 as the facts are common in both these cases and arise out of one suit.

Karnail Singh and Mast Singh Plaintiffs filed a suit for declaration for declaring the judgment and decree dated 10-2-1983 to be null and void qua their rights and for declaring the Plaintiffs and Defendant No. 4 Megh Singh their father as co parcener and proprietor in the suit land. The trial Court decreed the said suit on 2-1-1987. Appeal against the said judgment and decree was filed. Therein the Defendants moved two applications, one for amendment of the written statement which gives rise to Civil Revision No. 56 of 1988 and the other for permission to produce additional evidence which has given rise to Civil Revision No. 57 of 1988. By virtue of the application for amendment of the written statement the Defendants wanted to plead that Mal Singh their grandfather had executed registered will dated 29-1-1965 in favour of Megh Singh their father and he was the only heir of Mal Singh on the basis of that will which was the last will of Mal Singh. According to the Defendants, the property devolved upon his son Megh Singh through the will and it thus becomes the self acquired property of Megh Singh Thus according to the Defendants even if the judgment and decree suffered by Mal Singh in favour of Pal Singh and other Defendants is set aside, the suit land shall devolve upon Megh Singh on the basis of that will. That application was opposed by the Plaintiffs inter alia on the ground that the Defendants are setting up a new case in the garb of this amendment which was not warranted. However, the learned Additional District Judge. Patiala allowed the said application for amendment with the observations that "If the land in suit is proved to be Joint Hindu Family co-parcenary property in the hands of Mal Singh qua Megh Singh u/s 30 of the Hindu Succession Act, Mal Singh could will away his own share in the ancestral. Joint Hindu Family and co-parcenary property. He may not have been able to will away the entire Joint Hindu Family and co-parcenary property. At this stage, however, we have not to look to this fact whether the proposed amendment will or will not advance the case of Pal Singh etc. as that will be a matter requiring consideration after the proposed amendment is allowed." As a consequence of this order subsequent order dated 26-10-1987 was passed allowing the Defendants for producing additional evidence.

Learned Counsel for the Petitioners submitted that no amendment could be allowed at the appellate stage as no such plea was taken in the trial court though Megh Singh was a party to the suit. In the suit, the Plaintiffs only challenged the decree suffered by Mal Singh in favour of the Defendants and therefore, the amendment sought for was not at all necessary. The view taken by the lower appellate court was wrong, illegal and arbitrary. He also submitted that there was no occasion for allowing the additional evidence in view of the provisions of Order 41 Rule 27 Code of Civil Procedure. In support of his contention, he referred to Ranjit Kaur v. Ajaib Singh (1984) 86 P.L.R. 608, Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, Karan alias Karan Singh and Others Vs. Parkash Chand, . On the other hand, the learned Counsel for the Respondents submitted that the view taken by the learned Additional District Judge was perfectly valid. In any case, there was no justification for interference in the revisional jurisdiction. The amendments could be allowed at appellate stage to enable the parties to raise a new plea. In support of his contention, he referred to Pandit Ishwardas Vs. State of Madhya Pradesh and Others, .

After hearing the learned Counsel for the parties, I am of the considered view that there was absolutely no occasion for allowing amendment at the appellate stage. Of course, there is no bar for the court to allow the amendment of the pleadings at the appellate stage but that does not mean that the party is entitled to seek amendment as a matter of right particularly in appeal. It was held by this Court in Ranjit Kaur v. Ajaib Singh (1984) 86 P.L.R. 608, that the fact the amendment could be allowed at any stage and that the prayer to that effect could not be declined on the ground that the application made in that behalf was a delayed one, does not mean that the parties to the proceedings are entitled to seek amendment of the pleadings at any stage as a matter of right. It only means that if the court finds that the proposed amendment is necessary for the determination of the controversy between the parties, the amendment may be allowed even at a late stage. Here again the jurisdiction of the appellate Court is further limited because after the passing of the decree by the trial court, the rights of the parties come into being and then a very strong case is to be made out why the pleas sought to be taken by why of amendment could not be taken earlier. Even in the Supreme Court judgment relied upon by the learned Counsel for the Respondents i.e. Pandit Ishwardas Vs. State of Madhya Pradesh and Others, it was observed:

There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise.

In the present case, there is absolutely no explanation as to why the plea now sought to be taken by way of an amendment in the written statement was not taken earlier in the trial court. The suit remained pending for more than three years. The will sought to be pleaded is said to be of 29-1-1965 in favour of Megh Singh. After the said will Mal Singh suffered a decree on 10-2-1983 which was the subject matter of the present suit. That being so the will if any was of no consequence. Thus on the facts and circumstances of the case, the amendment sought for was not at all necessary to determine the real controversy between the parties. The whole approach of the learned Addl. District Judge in this behalf was wholly wrong and illegal and he has acted illegally and materially irregularly in the exercise of its jurisdiction.

As regards the additional evidence, there was absolutely no occasion for the lower appellate court to grant the same. The criteria was laid down by the Supreme Court for allowing additional evidence under Order 41 Rule 27 Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, where it was observed:

So far as the application for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41 Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.

In the present case no such findings has been given in the impugned order dated 26-10-1987. As a matter of fact no reason whatsoever has been given for allowing the additional evidence. Thus the court has again acted illegally and materially irregularly in the exercise of its jurisdiction in allowing the additional evidence.

Consequently both the petitions succeed and the impugned orders are set aside. Parties are directed to appear before the Court of Additional District Judge, Patiala on 3-4-1989 for deciding the appeal on merits in accordance with law.