Ranbir Singh and another vs Smt. Anita kumar and others

Manmohan Singh Liberhan, J.—Counsel for the parties are agreed that the revision petition be taken up for disposal at this stage.

This order will also dispose of Civil Revision Nos. 2347, 2648, 2282, 2283 and 2284 of 1988.

In Revision Petition Nos. 2282, 2283. 2184 the orders declining the prayer for removal of the Court-guardian and not appointing the mother as guardian, was impugned. The counsel for the Petitioners prays that these three revision-petitions be dismissed as withdrawn The Respondents have no objection to it. Civil Revisions Nos. 2282 to 2284 of 1988 are dismissed as withdrawn with no orders as to costs.

In Civil Revisions Nos. 2281, 2347 and 2348 of 1988 the order declining the permission to amend the written statement has been impugned

The factual matrix leading to the controversy is that the Plaintiffs filed the suit for possession by way of pre-emption, being co-sharers. The suit was filed on September 30, 1986. Service of summons took a long time. Joint written statement by Defendants, who are brothers along with court guardian, was filed on October 8, 1987. There was no conflict of interest between the minors and their brothers. The Plaintiffs closed their evidence on December 16, 1987. The Defendants were granted the last opportunity on May 24, 1988 to produce their evidence. Since no witness was present nor was any summoned, the Defendants, evidence was closed under the orders of the Additional Senior Sub Judge on 18-7-1988 On that day, itself an application for removal of the Court guardian under Order 32 Rule 3, CPC was preferred.

On July 19, 1988, another application seeking the amendment of the written statement was preferred. The following amendments in written statement were sought:-

(i) that since the Defendants had purchased a housing plot in addition to the land and no claim having been made with respect to the house in dispute, the suit is bad for partial preemption ;

(ii) that since the list of the relations of the minors was not filed with the suit, the suit was not maintainable ;

(iii) that the suit is defective as having not been properly valued for the purposes of court fee and jurisdiction ; and it suffers from deficiency in court-fee ;

(iv) that since the Plaintiffs have not disclosed in the suit with respect to their title, the suit is liable to be dismissed.

(v) that since the Plaintiffs are not in possession of any part of the property, therefore, their being co-sharers was denied.

(vi) that the Defendants have planted trees and have made the land fit for cultivation incurring expenditure to the extent of Rs. 40,000/- and claimed the same as the improvements on the land in dispute.

The Plaintiff-Respondents opposed the application and contended that the application was belated, mala fide and had been made with an ulterior motive to delay the proceedings. It was further stated that the pleas sought to be introduced by the amendments are already covered in the written statement filed. Proper issues had already been framed on which the parties had gone on trial.

The trial Court found the application to be belated and the Defendants'' attempt was to delay the disposal of the suit. The application was found to be devoid of bona fides. It was dismissed.

The counsel for the Petitioners contends that delay is not a sufficient ground to decline the amendment and relies upon Ram Chand v. Karam Vir and another 1987 P.L.J. 611. Daya Ham v. Puran Chand etc. 1974 C. L.J. 74, and Raghvir Prashad etc. v. Chet Ram 1971 C.L.J. 612. He further states that the proposed amendments go to the root of the case and are essential for the determination of the Plaintiff''s rights. It is contended that cost is the panacea for the application being belated.

The counsel for the Plaintiffs-Respondents controverts the submissions made the counsel for the Petitioners and contends that the application is not bona fide. The evidence of the Defendants was closed on July 18, 1988 under court''s order. An application for removal of the Court guardian was made instead of leading the evidence to forestall the further proceedings. On the following day, another application for amendment of the written statement was made. The only object of these applications was to reopen the case and undo the effect of the order closing the evidence. It is contended that even the proposed amendments corroborate the fact that applications are not bona fide. In the proposed amendments, the Defendants sought permission to raise pleas with regard to partial pre-emption, defect in giving the list of the relations of the minors and the right of the Plaintiffs being co-sharers. The pleas sought to be taken are already there in the written statement and issues have already been framed on them. The parties have already gone to the trial on the same issues which are sought to be raised. Other objection with respect to the valuation for purposes of court fee and jurisdiction has been raised only for the sake of delaying the proceedings. The trial Court has the unlimited pecuniary jurisdiction- The objection of court fee does not go to the root of the case By fixing any value for the purposes of jurisdiction, the Court''s jurisdiction cannot be taken away as it has an unlimited jurisdiction. So far as the minors'' interest was concerned, that was completely watched by their brothers who filed a joint written statement taking all the possible pleas in defence. The brothers have no adverse interest against the minors. Added to this is the fact that the revision petitions with respect to declining the permission for the removal of the Court guardian have been withdrawn. The Defendants want to play the game of chess in civil proceedings as is obvious from the admitted facts to the effect that the Defendants, during the pendency of the civil suit, had sought the partition of the land in dispute before the revenue authorities and an attempt was being made to conclude the proceedings before Revenue authorities before the decision of the civil suit.

I have heard the counsel for the parties. I was taken through the plaint, written statement as well as the application for amendment and the various interim orders passed by the counsel for the parties.

There is no dispute with the proposition of law that delay is not a sufficient ground in itself to decline the amendments In view of the submissions made by the counsel for the Respondents that the pleas which are being proposed to be raised as preliminary objections i.e. with respect to the partial pre-emption, Plaintiffs being not co-sharers etc are already there, though of course, plea with respect to the proper valuation for the purposes of Court fee and jurisdiction is not there. It is not disputed that the plea with respect to the valuation for the purposes of Court fee and jurisdiction does not go to the I root of the case in this case for the reason that the suit is being tried by the Additional Senior Sub Judge, who has an unlimited pecuniary jurisdiction to try the suit. The court fee is a matter between the State and the Plaintiffs. The Defendants will not suffer in any manner whatsoever in the absence of the said plea. The mere fact that last opportunity was granted by the trial Court to the Defendants to lead their evidence and on their failing to comply with the order their evidence was closed whereupon the applications were made on the same day or the succeeding day shows that the applications were made to forestall the further proceedings. Another opportunity was granted to Defendants on a concession made by Plaintiffs in the revision petition, to lead evidence at their own responsibility.

In view of the above facts, the inference which can be drawn is that applications for amendment were not filed bona fitly. The proposed amendments are already forming part of the defence and issues having been framed on them, the Petitioners will suffer no prejudice or injustice by the declining of the prayer for amendment. It is further obvious from the above facts that the proposed amendments do not relate to the determination of the real question in controversy, i.e., whether the Plaintiffs, are co-sharers and have a preferential right to pre-empt the sale

In Ram Chand''s case (supra) the amendment was refused on the grounds that it was delayed and would introduce a new cause of action. The High Court set aside the said order and held that the delay and introduction of a new cause of action by themselves are not sufficient to decline the amendment. There is no dispute with the law laid down. The facts and law of the present case is not pari materia with the facts and law laid down in the judgment.

In Daya Sam''s case (supra), it was observed that the proposed amendment was necessary for determining the real question in controversy between the parties and it was only a legal plea which was supposed to be hardly known to the litigant which was permitted to be raided. Here, there is be such question The pleas have already been raised and it is only the repetition of the pleas that is being sought to be raised by way of amendment.

The facts and circumstances of this case are squarely covered by the observations made in Gulshan Kumar v. Chander Bhan 1987 HAP 313 P&H, wherein it has been observed that amendments which are not bona fide cannot be permitted.

I find neither any error in exercise of jurisdiction nor the order, if allowed to stand, would occasion a failure of justice or cause any irreparable injury to the Petitioners. No injury to the Petitioners has been pointed out.

In view of the above observations, the revision petitions are dismissed with no order as to costs Parties through their counsel are directed to appear before trial Court on November 28, 1988