Krishan Kumar vs Smt. Devki Rani

V.K. Jhanji, J.—This civil revision is directed against the order of the trial court whereby application for amendment of the plaint in a pre-emption suit was allowed on payment of Rs. 1,000/- as costs.

In brief, the facts are that the plaintiff (respondent herein) filed suit for possession by way of pre-emption against defendant (petitioner herein) to pre-empt sale dated 2.2.1990. When an objection was taken by the defendant that the suit is bad for non- joinder of necessary parties, an application was filed on behalf of the plaintiff for amendment of the plaint to implead Devinder Kumar son of Bishamber Lai as defendant in the suit. Amendment was sought on the ground that it was only on perusal of the written statement that it came to the notice of the plaintiff that sale was made in favour of defendant Krishan Kumar as well as Devinder Kumar. According to the plaintiff, he could not array Devinder Kumar because in certified copy of the sale deed which he had obtained from the office of the Sub-Registrar, Ambala, Krishan Kumar alone was shown to be vendee of the land in dispute. Taking Krishan Kumar to be the only vendee, plaintiff arrayed him as the sole defendant. The mistake in not making Devinder Kumar a party was said to have occurred because of wrong supply of copy by the office of the sub-Registrar, Ambala, which was beyond the control of the plaintiff. In reply, the defendant stated that the plaintiff did not act in good faith and the amendment cannot be allowed in a pre-emption suit after the defendant has acquired the right on account of limitation. According to the defendant, the date the application was filed, suit, against Dayinder Kumar had become barred by time. On consideration of the respective stand of the parties, the trial court allowed the application for amendment and permitted the plaintiff to implead Devinder Kumar as one of the defendants. This order of the trial court is now being impugned in this civil revision.

Mr. M.S. Jain, Senior Advocate, counsel for the petitioner contended that if the certified copy of the sale deed had been read by the plaintiff with due care and attention, he could have easily gathered that the sale was made in favour of two persons. According to him, plaintiff cannot be allowed to implead Devinder Kumar because on the date of the application, the period of limitation stood expired. In support of his contention, he referred to the case of Bhawani Dass Vs. Kaushalya Rani, .

In reply, counsel for the respondent, contended that the respondent had no reason to suspect error in the certified copy and omission to implead Devinder Kumar was due to the mistake made in good faith. He also contended that the trial Court rightly allowed the respondent to add Devinder Kumar from the date the suit was filed.

In order to appreciate the respective contentions of counsel for the parties, it is necessary to ascertain as to whether there was any other evidence on the record to show that on the date the suit was filed, plaintiff could know by any other means that there was any other vendee who had purchased land along with vendee shown in the certified copy. The trial Court in its order, has noticed that in the copy of the sale-deed produced on record, the name of Devinder Kumar finds mention. Counsel for the petitioner has placed on record copy of the sale-deed, a perusal of which shows that on the very first page, the heading of the sale- deed, it finds mention that the sale is made by Des Raj in favour of Krishan Kumar and Devinder Kumar. In the body of the sale-deed, the name of Devinder Kumar stands omitted, but endorsement made by the office of the Sub-Registrar at the back of the sale-deed, makes it clear that it was Devinder Kumar who appeared before the Sub-Registrar and put his signatures at the time of registration of the sale-deed and paid the sale price to the vendor. As already noticed, the name of Devinder Kumar finds mention not only in the sale-deed, but even the word ''vendees'' has been used at several places, from which it is crystal clear that the sale-deed was made in favour of more than one person. In pursuance of this sale, mutation was also i sanctioned in favour of the vendees. The plaintiff in his plaint has made a | mention of mutation No. 1881, reading of which makes it abundantly clear that the sale was made in favour of more than one person and Devinder Kumar was also a vendee along with the petitioner. In these circumstances, the petitioner cannot legitimately say that the mistake was bona-fide or was made in good faith as contended by the counsel for the respondent. The expression ''good Jfaith'' is defined in Section 2(h) of the Limitation Act which reads as under:-

" 2(h) "good faith" - nothing shall be deemed to be done in good faith which is not done with due care and attention."

The plaintiff was entitled to claim benefit of proviso to Section 21 of the Limitation Act if he could have established on record that mistake on his part was made in good faith because Section 21 of the Limitation Act provides that " where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant should be deemed to have been instituted on any earlier date." If the plaintiff had given due care and attention to copy of the sale-deed and mutation No. 1881, the name of Devinder Kumar could have easily been ascertained. He having not done so, cannot defeat the right of the defendant which has accrued to him by lapse of time. For this, I also find support from the Division Bench judgment of this Court in Bhagwani Dass''s case (supra), wherein it was held that "in a suit for pre-emption of certain land, the plaintiff relied on a copy of the sale-deed obtained by him from the office of the Sub-Registrar. The copy so obtained by the plaintiff contained only one name of the vendee. But the recitals of the sale-deed if read with caution created suspicion that there were more than one vendee."

In the circumstances, it was held that if the certified copy of the sale-deed had been read by the plaintiff with due care, he could have easily gathered the details of the omitted defendant. In the present case, not only from the reading of the sale-deed, the respondent could have come to know about the omitted defendant, but bare perusal of the copy of mutation in his possession would have shown that the sale was in favour of two persons including Devinder Kumar. The facts of the case in Munshi Ram v. Narsi Ram 1983 P.L.J. 166 relied upon by the counsel for the respondent, are clearly distinguishable on the facts of the present case. In Munshi Rain''s case (supra), the mistake to omit defendant was found not only to be in good faith, but the apex Court also found that there was no evidence to show that on the date of the suit, appellant knew by any other means that there was any other defendant who had purchased the land along with defendant No. 1. The judgment of this court in Raghuvir Prashad etc. v. Chet Ram 1971 CLJ 612 is also of no help to the plaintiff as that only states the principles on which the amendment can be allowed without injustice to the other side. The judgment in the case of Gurpal Singh and Ors. v. Himalya Travel and Export Corporation, 1985 (1) All India Land Laws Reporter 291, has also no application to the facts of the present case as in that case, it was only a typographical mistake which was allowed to be amended. 6. For the reasons recorded above, this revision petition is allowed and the order of the trial Court is set aside. As a consequence thereof, application for amendment of the plaint stands dismissed. No costs.