Lashkar Singh vs Bhulla Singh

Sat Pal, J.

This petition has been directed against the order dated 9.9.1997 passed by Civil Judge (JD) Phagwara. By this order, the learned trial Court has allowed the application filed by the respondentplaintiff under Order 6 Rule 17 CPC for amendment of the plaint. Notice of this petition was issued to the respondent.

Mr. Ashu Punchhi, the learned counsel appearing on behalf of the petitioners submits that by the proposed amendment sought by the respondent plaintiff the respondent wants to withdraw the admission made in the original plaint. He submitted that in the original plaint, it has been stated that the plaintiff was owner in possession of a house situated in village Maheru, Tehsil Phagwara and the construction of the house was on khasra No. 2247 and khasra No. 2248/17. He submitted that earlier the respondent had pleaded private partition but in the proposed amendment, it has been stated that there was no partition. He further submitted that in the original plaint, there is no mention of nay private passage. He, however, submitted that by way of proposed amendment, the respondentplaintiff wants to make out a cas that his house is constructed only on khasra No. 2247 and there is a private passage to the residence of the petitioner in the western side which is about 6" in width. He, therefore, contended that the amendment sought by the respondent plaintiff was of such a nature as to displace the defendantspetitioners'' case and as such could not have been allowed. In support of his submission, the learned counsel has placed reliance on a judgment of Supreme Court in Heera Lal v. Kalyan Mal and others, AIR 1998 SC 618 : 1998(1) RRR 140.

Mr. Viney Mittal, the learned counsel appearing on behalf of the respondent, however, submitted that the learned trial court was justified in allowing the respondentplaintiff to withdraw the admissions of fact as the same were necessary for effective adjudication of the case. He submitted that withdrawal of admission for the purpose of effective adjudication was permissible under law. He also submitted that procedural law was intended to facilitate and not to obstruct course of substantive justice. In support of his submission, the learned counsel placed reliance on two judgments of the Supreme Court in M/s Ganesh Trading Co. v. Moji Ram, AIR 1978 Supreme Court 484 and Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, AIR 1983 SC 462 and a judgment of this Court in Raj Kumar and other v. Shri Narian Dass and others, 1992(2) PLR 263 : 1992(1) RRR 433.

I have given my thoughtful consideration to the submissions made by the learned counsel of the parties and have perused the record of the case. The original para No. 1 of the plaint reads as under :

"That the plaintiff is owner in possession of a house situated at vill. Maheru, Teh. Phagwara, as fully detailed and described in the heading of this plaint. To make it clear, it is mentioned here that the plaintiff purchased land measuring 09 marlas, No. Khasra 2247, from Lehmber Singh, Jasbir Singh etc. vide sale deed dated 3.4.1972 and the plaintiff is also owner of 33/4 marlas in khasra No. 2248/17 on the basis of private partition and in this khasra No. the share of the plaintiff falls towards eastern side of the land, adjoining the said khasra No. 2247. The plaintiff constructed a house on khasra No. 2247 in total and some portion of khara No. 2248/17 and fixed a gate also in it."

The proposed para No. 1 after amendment reads as under :

"That the plaintiff is owner in possession of a house situated at village Maheru, Teh. Phagwara as fully detailed and described in the heading of this plaint. To make it clear, it is mentioned here that the plaintiff purchased land measuring 09 marlas, No. khasra 2247, from Lehmber Singh, Jasbir Singh etc. vide sale deed dated 3.4.1972 and the plaintiff is also owner of land bearing in khasra No. 2248/17. The plaintiff is a cosharer to the extent of 2/15 share in khasra No. 2248. The plaintiff has constructed his residential house in khasra No. 2247 which is encircled by the boundary wall and gate. The plaintiff has also kept a private passage to the said residence in its western side which is about six feet in width. A part of the said private passage falls in khasra No. 2247 while a portion thereof measuring about 1/2 marla falls in khasra No. 2248 . Both the khasra Nos. 2247 and 2248 adjoin each other."

It will be seen from the above mentioned two paragraphs that in the original plaint, the respondentplaintiff had pleaded private partition of the suit property whereas in the proposed amendment he has stated that there was no partition. Similarly in the original plaint, it has been pleaded that the house in dispute has been constructed on khasra No. 2247 and some portion of the house is constructed on khasra No. 2248/17 and a gate has been fixed in it but in the proposed amendment, the plaintiff wants to plead that the plaintiff had constructed his house in khasra No. 2247 only which is encircled by the boundary wall and gate and he has kept a private passage to the said residence which falls partly in khasra No. 2247 and a portion thereof measuring about 1/2 marla falls in khasra No. 2248. From these facts it is clear that the plaintiff wants to withdraw certain admissions made in the original plaint and the amendment sought was of such a nature which could displace the defendants'' case. From para3 of the grounds of revision, I find that the proposed amendments have been sought with a view to fill up the lacuna pointed out by the petitionerdefendant in para1 of the written statement. It is true that the procedural laws are intended to facilitate and not to obstruct course of substantive justice. But at the same time the amendment which is of such a nature as to displace the other party, could not be allowed. In this connection reference may be made to a judgment of the Supreme Court in M/s Modi Spinning and Weaving Mills Co. Ltd. and anther v. M/s Ladha Ram and Co., AIR 1977 SC 680 wherein it was held that while granting amendments no inconsistent or alternative plea can be allowed which would displace the case of the other side. In view of the aforesaid, I am of the opinion that the impugned order dated 9.9.1997 can not be legally sustained. The view I have taken finds support also from the recent judgment of the Suprme Court in the case of Heera Lal (supra).

For the reasons recorded herein above, the petition is allowed and the impugned order dated 9.9.1997 is set aside. Consequently, the application seeking amendment of the plaint filed by the respondentplaintiff stands dismissed.