Ram Singh and ors. vs Beli Ram

M.S. Liberhan, J.

This is a regular second appeal against the Judgment and decree of the Courts below decreeing the suit of the plantiffRespondent for declaration and possession holding that the plaintiff had become owner of the land in dispute by efflux of time as the defendants had tiled to redeem the mortgage within thirty years.

The plaintiff contended that land measuring 40 Bighas 6 Biswas was mortgaged with him by Har Lal on 25.3.1947 for Rs. 2,000/. Mutation with regard to the mortgage was sanctioned on 14.4.1947. The consolidation took place and land measuring 124 Kanals 4 Marlas was allotted in lieu of 80 Bighas 6 Marlas of land held by Har Lal of which the land in dispute forms a part. The plaintiff purchased 29 Kanals 13 Marlas out of the land mortgaged on 21.6.1968. Har Lal sold the remaining land, i.e. 93 Kanals 13 Marlas on 1.7.1968 to one Hans Ram and Smt. Parmeswari, who sold specific numbers measuring 16 Kanals to Beli Ram plaintiff on 6.12.1968. A suit by Tota Ram for preempting the sale in favour of Hans Ram and Smt. Parmeshwari was decreed on 3101970. Tota Ram further suffered a consent decree transferring one acre of land to each of the there sons of Beli Ram. Tota Ram sold 1233/2786th share i.e., 30 Kanals 16 Marlas to Bell Ram plaintiff. The remaining 1553/2786th share measuring 38 Kanals 17 Marlas of land was sold to Jagmal, who further sold 23 Kanals 8 Marlas of land to defendants Nos. 1 to 3.

In view of the facts, the plaintiff sought a declaration that the land in dispute was mortgaged with him, since thirty years period for its redemption elapsed, he had becomes its owner. The defendants were alleged to be the trespassers, hence consequential relief for possession of the land in dispute was also sought.

The defendants denied plaintiff being the mortgagee, and claimed their possession as legal. Numerous other defences like limitation, maintainability of the suit estoppel by act and conduct in filing of the suit as well as being bona fide purchasers were raised.

The trial Court repelled the contentions of the defendants. It was found that the land in dispute was mortgaged with the plaintiff, and on the expiry of thirty years he would be deemed to have become owner by efflux of time. It was further found that there was no evidence on the record to show that the land in dispute was ever redeemed. The suit was found to be within limitation. It was further found that the plaintiff had the locus standi as well as cause of action and he was not estopped from filing the suit, nor the suit was bad for nonjoinder of necessary parties. The transfers were held to be not in, good faith. Resultantly, the suit was decreed.

In appeal an application under Order 41, Rule 27, Civil Procedure Code, was made for permission to produce certified copy of the order of redemption ion by the Collector dated 20121967, warrant of possession and Report Roznamcha dated 31.5.1968, showing execution of the warrant of possession. It was further averred that the order of redemption was executed and stood satisfied. It was further averred that the factum of redemption in the year 1968 came to their knowledge only after the decision of the suit, as they had purchased the land in dispute in the year 1971. Permission to lead the additional evidence was declined as there was no plea of redemption in the written statement, the mere discovery of the documents at a late stage being no ground for additional evidence and there being no substantial cause for additional evidence.

In this regular second appeal, the defendantappellants preferred an application (C.M.No. 975C of 1988) for permission to amend the written statement to take the following plea as preliminary objections :

"1. That the suit is not maintainable as the land was redeemed by Har Lal the mortgagor, within the period of limitation. Har Lal, the mortgagor, filed an application for the redemption of the land measuring 123 Kanals 4 Marlas which was subject matter of mortgage dated 25th March, 1947, and regarding which the mutation was sanctioned on 17th April, 1947, and sought the redemption of the suit land on payment of Rs.2000/. The application was allowed by the competent Court. The order was passed by Shri S.P. Bhatia, H.C.S. Assistant Collector Ist Grade, Fatehabad, on 20th December, 1957. The warrant of possession was issued after the deposit of the mortgage amount and the possession was delivered to Har Lal, the mortgagor vide Rapat Roznamcha No. 40 dated 31st May, 1968.

That the plaintiff is taking undue advantage of the several transaction which had taken place after the redemption of the land. He wants to play a fraud upon the Court as well as the answering defendants as they are bona fide purchasers of the land. The plaintiff is liable to be prosecuted for filing a false and frivolous suit. He had wrongly asserted that the suit land has not been redeemed and verified the contents of the plaint to his knowledge whereas according to his own knowledge the contents of the plaint were absolutely false and incorrect."

It is contended that the defendants failed to raise the plea because of the fraud played by the plaintiff upon the Court and their ignorance about the previous litigation as they had purchased the land in dispute in the year 1971 and the redemption had already taken place in 1967. It was further stated that the amendment is necessary for the proper decision of the case and it also goes to the root of the case. In the interest of justice, the amendment should be allowed.

The application for amendment is being opposed on the ground (i) that it is belated (ii) it will change the character of the defence and the defendants shall be able to substitute or new defence to the one already taken. It was contended that there is not even a reference in the pleadings with respect to the redemption and in the absence of the same the appellant applicant cannot be permitted to amend tile written statement,

Learned counsel for the appellant relied upon :

(1) M/s Ganesh Trading Co. v. Moji Ram, AIR 1978 S.C. 484.

(2) Ishwardas v. State of Madhya Pradesh and others, AIR, 1979 S.C. 551;

(3) Smt. Dhappan v. Birinder Kumar Jain, 1987(2) L.L.R. 214.

(4) Raghbir Prasad etc. v. Chet Ram, 1971 Cur. LJ 612.

(5) Daya Ram v. Puran Chand etc. 1974 Cur. LJ 74.

(6) Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 S.C. 1267, and

(7) Maitreyee Banerjee v. Prabir Kumar Mukherjee, AIR 1982 S.C. 17.

It has been observed in Jai Jai Ram Manohar Lal''s case (supra), by their Lordships of the Supreme Court :

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent of careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

Relying on the said judgment, in M/s. Ganesh Trading Co, v. Moji Ram''s case (supra), their Lordships observed:

"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases in are meant to give each side intimation, of the case of the other so that it may be met; to enable Court''s to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes of action must take.

It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings; subject to such terms as to costs and givings of all partices concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or, its counsel is inefficient in setting out its case initially the shortcoming can certainly he removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from the omissions. The error is not incapable of being restified so long as remedical steps do not unjustifiably injure rights accrued.

It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, anmounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its. favour due to lapse of time. But mere failure to set. out even an essential fact does not, by itself constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiffs must prove before he can succeed in his suit. It must be antecedent to the institution of the suit If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleading. Defective pleadings are generally curable if the he cause of a action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional courtfees which may be payable, or of costs of the other side are compiled with. It is only if lapse of time has barred the remedy on a namely constituted cause of action that the courts should, ordinarily, refuse prayers for amendment of pleading."

It was further observed that the object of the rules of procedure is to decide the rights of the parties and not to punish them for their mistakes or shortcoming Generally. the reason for declining the amendment has been stated to be that in case a party has acquired any right because of remedy becoming barred by time, or where the amendment sets up an entirely new or inconsistent cause of action amounting virtually to substituting 4 new plaint, or new cause of action, or any alleged admission is being withdrawn, on the amendment sought is mala fide .

In Ishawardas v. The State of Madhya Pradesh (supra), it has been observed that delay may be considered for disallowing the amendmentment but amendment can be allowed even at the appellate stage. In Maitreyee Banerjee Prabir Kumar case (supra), the Supreme Court has again reiterated the general, accepted principles when the amendment can be disallowed,i.e.(1) when the proposed amendment takes away by the right of a party acquired by lapse of limitation and (2) when by proposed amendment irreparable injury, or injustice is going to be caused to the opposite party or there was jurisdictional error then the amendment can be refused. It was further observed that in tile interest of justice normally the amendment should be allowed.

Following the dictum of the Supreme Court in various precedents it is obvious that of a strong case is made out and the Court feels necessary to determine the real controversy between the parties and further the proposed amendment was not likely to introduce a new case and it is only to give better particulars to determine the real issue in controversy and there is no mala fide the amendment should be allowed even at a belated stage particularyly when the injury to the respondent can be well compensated by way of costs.

It was observed in Daya Ram v. Puran Chand (supra), that the negligence of a counsel is mere embellishment and does not in any way, affect the controversy in deciding the application for amendment. Each case has to be seen on its own facts. It was further observed that in case the proposed amendment goes to the root of a case and found to be factually correct, it would be a pity to deny the just relief to the rightful party and deprive him of his properly solely on the ground that he has failed to take a plea in his pleadings.

My considered opinion, the parties cannot be permitted to play the game of chess in civil lis. The very object of pleadings, as observed in various presendents, is to bring to the notice of the rival party the facts which he is required to plead. The error committed even on account of negligence cannot be perpetuated particularly when the remedial procedure has been provided by the statute. A person cannot be denied a just relief soley on the ground of laches particularly when cost is the panacea for it. A party effected by the delay except in those cases where he has acquired the right by efflux of time can very well be compensated by payment of costs. In the case in hand, if tile defendants are able to prove that there was an order of redemption, deposit of money and delivery of possession then in consequence of the order of redemption and delivesy of possession the mortgage should stand discharged. It will be a great injustice to the defendant to deny them their due and permit the plaintiff to acquire the title in the property for no just or equitable. reason. The order of the revenue authorities, deposit of the money, Report Roznamcha, etc., are the revenue record, and cannot be tampered with or perjured.

In view of the facts and circumstance stated above and in the interest of justice, the proposed amendment is allowed on payment of Rs. 500/ as costs. I direct the trial Court to permit the defendants to carry out the proposed amendment in his written statement, allow the plaintiff to file rejoinder and raise the proper issue on tile amended pleadings and decide the same after affording an opportunity to the parties to lead evidence. The trial Court shall decide issues Nos. 1 to 3 afresh in view or the additional of plea allowed by me by way of amendment. However, the findings on issues Nos 4 to 9 are affirmed and the same shall not be gone into afresh. In view of the above observations, the appeal is disposed of. The parties are directed to appear before the trial Court on 27th July, 88.