Sodhi Singh and Others vs Basant Singh and Another

Shamsher Bahadur, J.—This judgment will dispose of Civil Revisions Nos. 398 and 399 of 1961, both preferred by the petitioners Sodhi Singh and others. Civil Revision No. 398 of 1961 is directed against Basant Singh while Civil Revision No. 399 of 1961 is against Rup Singh.

These petitions arise out of the amendments which have been allowed in the pre-emption suits brought by Basant Singh and Rup Singh in respect of sale of agricultural land and house property on 5th January 1959 for a sum of Rs. 5,000/- in favour of the petitioners Sodhi Singh and others. The sale deed was registered on the 2nd July 1959 and the suit for pre-emption was brought by Basant Singh on the last day of limitation on the 2nd July 1960 while the suit by Rup Singh was brought on 30th June 1960. In the written statements filed by the petitioners-vendees, it was stated that the entire property which was the subject-matter of sale had not been included in the pre-emption suits. Further particulars were asked for and eventually both the plaintiffs sought amendment in the plaints by addition of one khasra number each. It is worthy to note that the agricultural land mentioned in the preamble of the plaints comprised of more than 200 khasra numbers and it was explained by the plaintiffs that they were misled by the copies which they had obtained from the office of the Sub-Registrar regarding the khasra numbers which had been actually sold to Sodhi Singh and others. It appears that in the copy supplied to Rup Singh, khasra number 2889/2213 was not mentioned and in the prayer for amendment made on his behalf it was prayed that this may be included in the land which had already been specified in detail in the plaint. So far as Basant Singh is concerned, the addition of Khasra No. 593 is sought to be introduced by amendment of the plaint. The learned Judge considering that the mistakes which the plaintiffs sought to rectify were, not of their own seeking and were clerical in nature allowed the amendment. The vendees have challenged the order of the Subordinate fudge in these revision petitions.

It has been vehemently urged by Mr. Balmukand, learned counsel for the petitioners, that the prayer for amendment of the plaints was not made bona fide by the plaintiffs in as much as the correction had not been applied at the earliest opportunity which was afforded to them by the written statement filed by the vendees on 18th October 1960 when it was traversed that the entire property which was the subject-matter of the sale had not been included in the two plaints. As observed by the trial Court the vendees did not specify in what respects the particulars in the plaints were insufficient or incomplete and was left to the plaintiffs to see by comparison of the certified copies which khasra number had been omitted from the plaint in each case. The plaintiffs conceivably had no reason to conceal from the Court the true state of affairs and I cannot see how their action can be assailed as mala fide. One of the issues framed in the case is whether the suit would proceed being one for partial pre-emption, and the counsel contends that the object of the amendment was to get round the difficulty which had been placed in the way of the plaintiffs by this issue. As observed Jalal Din v. Qaim Din 62 P.R. 1914=225 P.L.R. 1914, a Division Bench authority of Johnstone and Shadi Lal JJ., an amendment under Order 6, rule 17 of the CPC is permissible provided it does not alter the character of the suit or introduce a different cause of action. There is no alteration of the cause of action involved by granting the prayer for amendment in this case. It may be that an additional piece of property is introduced by this amendment but the character of the suit remains unchanged. In Jalal Din''s case 62 P.R. 1914=225 P.L.R. 1914 also there was an omission by inadvertence and the amendment was accordingly found to be admissible. In my opinion, there is no need of showing any elaborate justification of the order which was made by the trial Judge. Plainly the plaintiffs were misled by the copies supplied to them and sought the amendment as soon as they discovered the mistakes.

It has further been contended by the learned counsel that an amendment of pleadings should be refused where it would work into an injustice to the other side. By way of elucidation, it is argued that the plaints were presented on the last day of limitation and the suit in each case would have been dismissed being one for partial pre-emption. According to counsel, amendment at this stage would deprive the vendees of the valuable right which has accrued to them, the amendment having been asked for after the period of limitation. In support of this reliance has been placed on a judgment of the Supreme Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , where it was stated by their Lordships that-

Where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The, ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?

Their Lordships of the Supreme Court in this case upheld the discretion exercised by the High Court in allowing the amendment even though the limitation in the suit had expired on the grounds that the cause of action was not changed and the opposite party had not been taken by surprise. In the present case we find that a certain item of property was inadvertently omitted and far from being taken by surprise the vendees themselves had pointed out the defects in the original plaints. It is to be observed that the total area of land sold was correctly mentioned in the plaints. It is only in respect of the detailed description of land and that too of only one of the many khasra numbers comprised in this area that the amendment was sought. In the Punjab case to which reference has been made an application had been made to amend the plaint after the period of limitation had expired and on the defect being pointed out by the vendees'' pleader, it was held by Johnstone and Shadi Lal JJ. in Jalal Din''s case 62 P.R. 1914=225 P.L.R. 1914 that the amendment in spite, of this was still permissible. The authority of Jalal Din''s case 62 P.R. 1914=225 P.L.R. 1914 being based on identical facts is fully applicable in the present instance. I would accordingly uphold the order of the learned trial Judge, allowing the amendment. These petitions fail and are dismissed. I would, however, like to make it clear that the trial Court would permit the defendant-vendees to file written-statements to the amended plaints which may have been or may be filed by the plaintiffs. No order as to costs.