Sqn. Ldr. Gurdial Singh (Retd.) vs Gurdev Singh and others

This order of mine will dispose Civil Revisions Nos. 1566 and 2114 of 1990.

The suit property was originally owned by one Kartar Singh son of Ganda Singh. After his death, property came to his widow Kartar Kaur. Upon her death, Randhir Singh son of Ganda Singh, her sole heir and legal representative being the brother of her husband became the owner of the property and on the death of Randhir Singh, Bhagwan Kaur his widow filed a suit for declaration to the effect that the plaintiff is exclusive owner of 1/2 share (originally which belonged to Kartar Kaur widow of Kartar Singh) and for permanent injunction restraining defendant Gurdev Singh and Sarabjit Singh from alienating the property in suit. Defendant No. 1 set up a Will alleged to have been executed by Kartar Kaur in their favour. During the pendency of the suit, Bhagwan Kaur died and an application was made by Gurdev Singh (now plaintiff) for impleading himself as the sole heir and legal representative of Bhagwan Kaur. On his application, he was allowed to be impleaded in place of Bhagwan Kaur.

On 20-9-1982 Gurdev Singh plaintiff filed an application for amendment of the plaint so as to include the prayer of possession of the suit property as he alleged that during the pendency of the suit, defendants have forcibly dispossessed the plaintiff from the property in suit. The amendment was allowed to include the prayer of possession.

On 29-5-1985 the suit was decreed in favour of Gurdev Singh. Being aggrieved against the judgment and decree of the trial Court, defendants Nos. 1 and 2 filed appeal before the first appellate Court. During the pendency of appeal an objection was taken that the trial Court has not framed certain issues which were very vital for the decision of the suit. On the application of the defendants, the first appellate Court framed as many as six issues and one of the issues was-

"Whether Randhir Singh and Bhagwan Kaur made any valid Will bequeathing their property to Gurdev Singh? OPP"

A report was called from the trial Court on the said issue. The trial Court, after giving opportunity to lead evidence to the parties, submitted the report to the first appellate Court. The aforesaid issue was decided in favour of Gurdev Singh.

After the report was received by the first appellate Court, another application was filed by plaintiff, Gurdev Singh to amend the plaint so as to take up the plea that he is not only the adopted son of Randhir Singh and Bhagwan Kaur, Randhir Singh and Bhagwan Kaur executed Wills dated 14-9-1973 and 24-9-1979 respectively in his favour. He further stated that in the application, evidence has already been recorded on the proposed plea and issue was also framed by the first appellate Court. Finding on the same has been returned in his favour. His prayer was that the said plea is necessary for just and proper decision of the case and to avoid multiplicity of proceedings. The said application was contested by the defendants and the first appellate Court has allowed the application and permitted the plaintiff to amend his pleadings. The objection of the defendants as to whether the claim of the plaintiff is barred by limitation was kept open. Defendants Nos. 1 and 2 have impugned the order of the first appellate Court whereby plaintiff was allowed to amend his plaint and have filed separate revisions.

Learned counsel for the petitioner-defendants have challanged the order of the first appellate Court on two counts; (1) that the suit was originally filed by Bhagwan Kaur and Gurdev Singh was only her legal representative and legal representative could raise only such objection as the deceased would have raised i.e. the plaintiff is confined to the pleadings and the case of the deceased plaintiff. In support of this proposition, they have relied upon :--

(1) Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, ; (2) Dareppa Alagouda Vs. Mallappa Shivalingappa, ; (3) Jaiprakash v. Lilabai, AIR 1963 Bom 100; (4) Kizhiakalathil Puthan Veetil Thavazhi Karnavan Vs. Manikat Variath Ukkali Varissiar''s son Sankunni and Others, ; (5) Radhakrishna Padhi etc. Vs. Bhajakrishna Panda and Others, .

The second Court to challenge the order of the first appellate Court was that the application is belated as the plaintiff had ample opportunity to amend his plaint when the suit was pending before the trial Court.

After hearing learned counsel for the parties at length, I find that there is no merit in the contentions of learned counsel for the petitioner. There is no quarrel with the proposition that legal representative has merely Tight to continue the suit and he cannot make any claim to which the original plaintiff was not entitled to but in the facts and circumstances of this case, it is not open to the defendants to object to the amendment of the plaint particularly when the first appellate Court framed issue with regard to the execution and validity of the Will by Randhir Singh and Bhagwan Kaur deceased in favour of Gurdev Singh plaintiff on the application filed by the petitioners. The objection that legal representative must continue litigation on the cause of action sued by the deceased plaintiff was open to the defendant at the time when the issue with regard to execution and validity of the Will was framed by the first appellate Court. Defendants, after framing of the issues, not only allowed Gurdev Singh to lead evidence on the said issue but also led evidence in rebuttal. After consideration of the evidence on record, the trial Court returned a finding in favour of the plaintiff Gurdev Singh. It would be highly inequitable and shall lead to multiplicity of proceedings in case the plaintiff Gurdev Singh is forced to file a separate suit on the basis of the Wills. No prejudice is going to be caused to the defendants as evidence with regard to the execution and validity of Wills has already come on the record and they have every right to challenge the said finding before the first appellate Court where the appeal is pending for consideration.

The second contention of learned counsel for the petitioner that the application for amendment ought to have been dismissed because the same was filed belatedly and that too during the pendency of the appeal. This contention is also devoid of any merit. Merely because an application for amendment has been filed before the first appellate Court is no ground to reject the application. As already noticed, the evidence on the proposed amendment has already come on the record and no prejudice whatsoever is going to be caused to the defendant if plaintiff Gurdev Singh in allowed to amend his plaint. Interests of defendants have been safeguarded by the first appellate Court as the objection with regard to claim of the plaintiff having become barred by limitation has been kept open. The first appellate Court while deciding the appeal shall also decide the said objection, if raised by the defendants. As a result thereof, I find no merit in the revision petitions and the same are dismissed. The parties are left to bear their own costs.

Petitions dismissed.