Himachal Pradesh High Court

Ram Pal vs Mahinder Singh. The Judgment And ... on 29 November, 2021

Bench: Jyotsna Rewal Dua

       IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 29th DAY OF NOVEMBER, 2021
                                 BEFORE




                                                             .
               HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





         CIVIL MISC. PETITION MAIN (ORIGINAL) No. 60 of 2015
          Between:-





          1.    RAM PAL, SON OF SHRI DEVI RAM
          2.    RASH PAL, SON OF SHRI DEVI RAM.
          3.    SMT. BIASA, WIFE OF SHRI RASH PAL SINGH

                ALL RESIDENTS OF VILLAGE PUNEHALI,





                PARGANA CHAMBA, TEHSIL NALAGARH,
                DISTRICT SOLAN, H.P.

                                                         .....PETITIONERS

                (BY MS. DEVYANI SHARMA, ADVOCATE)

                 AND
          1.    MAHINDER SINGH
                SON OF SHRI RIRKA,


                RESIDENT OF VILLAGE PUNEHALI,
                PARGANA CHAMBA, TEHSIL NALAGARH,
                DISTRICT SOLAN, H.P.




                AT PRESENT RESIDING AT
                VILLAGE JAGLI, (POLE DA KHALA),
                TEHSIL NALAGARH,





                 DISTRICT SOLAN, H.P.
          2.    POLA RAM
                SON OF SHRI MATHURA DASS,





                RESIDENT OF VILLAGE PUNEHALI,
                PARGANA, CHAMBA, TEHSIL NALAGARH,
                DISTRICT SOLAN, H.P.
                                             ..... RESPONDENTS


          (BY SH. SANJEEV KUDHIALA, SENIOR ADVOCATE WITH
          MS. ANAIDA KUTHIALA, ADVOCATE)

          _____________________________________________________________
               This petition coming on for hearing this day, the Court

    passed the following:




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                                              2


                                   ORDER

The application moved by the plaintiffs under Order 6

Rule 17 of Code of Civil Procedure, for amendment of the plaint at

the stage of arguments has been dismissed by the learned trial

Court vide order dated 20.01.2015. This order has been assailed by

the plaintiffs in the instant petition, preferred under Article 227 of

the Constitution of India.

2. The civil suit was filed by the plaintiffs for specific

performance of an agreement to sell dated 24.09.2007. Evidence

was adduced by the parties. During evidence, the defendants

tendered a copy of judgment and decree dated 26.02.2010 passed

in Civil Suit No.142/1 of 2008, titled Kalawati and others Vs.

Mahinder Singh. The judgment and decree dated 26.02.2010 was

conveyed by the defendants to the plaintiffs during his cross-

examination on 22.03.2012. Two years later, on 26.07.2014, the

plaintiffs moved an application for amendment of the plaint under

Order 6 Rule 17 C.P.C. By means of the amendment, plaintiffs

wanted to seek the relief of declaration that judgment and decree

passed in Civil Suit No.142/1 of 2008 was wrong, illegal and null

and void. This application was dismissed by the learned trial Court

on 20.01.2015. It is in the aforesaid background, the present

petition has been filed assailing the order dated 20.01.2015.

3. Learned counsel for the petitioners vehemently

contended that the proposed amendment does not alter the nature

of the civil suit. No injury shall be caused to the defendants in case

the proposed amendment is allowed. Learned counsel also

submitted that the proposed amendment will avoid multiplicity of

litigation and, therefore, was required to be allowed in the interest

of justice. Another contention raised was that the cause of action to

seek the proposed amendment had arisen subsequent to the filing

of the instant suit, therefore, the plaintiffs could not be held guilty

of lack of due diligence on their part. In support of these

submissions, reliance was placed upon various judgments.

Opposing the petition, learned senior counsel for the

defendants argued that the plaintiffs had not acted with due

diligence in moving the application. The proposed amendment, if

allowed, would completely change the nature of the civil suit.

Learned senior counsel further submitted that under the proposed

amendment, relief has been prayed against the persons who are not

parties to the civil suit. It was thus argued that the learned trial

Court committed no error in dismissing the application moved by

the plaintiffs for amendment of the plaint. Various judgments in

support of these submissions were relied upon.

4. I have heard learned counsel for the parties and have

gone through the record.

In my considered view, this petition merits dismissal

for the following reasons:-

4(i) The plaintiffs sought amendment of the plaint under

Order 6 Rule 17 of CPC, which reads as under:-

"17. Amendment of Pleadings The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such

.

amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trail has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the

commencement of trial."

In (2009)4 SCC 332, titled M.Revanna Vs.

Anjanamna (dead) by legal representatives and others, well

settled principle was reiterated that leave to amend may be refused

if it introduces a totally different, new and inconsistent case or

challenges the fundamental character of the suit. Relevant paras

from the judgment are extracted hereinbelow:-

" 7. Leave to amend may be refused if it introduces a totally

different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for

amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment d after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an

amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration

.

whether the application for amendment is bona fide or

mala fide and whether the amendment causes such prejudice to the other side which cannot be

compensated adequately in terms of money.

9. Having regard to the totality of the facts and circumstances of the case. We are of the considered opinion that the application for amendment of the plaint

is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed. The same would

lead to a travesty of justice, inasmuch as the Court

would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause

serious prejudice to Plaintiff 6 Respondent 1 herein."

4(ii) Civil Suit No.142/1 of 2008 was instituted by S/Smt.

Kalawati, Satya Devi and Prakashi against the present defendants.

Contentions of the plaintiffs in Civil Suit No.142/1 of 2008 were

that the Will executed by one Shri Rirka in favour of defendant

No.1 was null and void. That mutation attested on the basis of Will

was also null and void. This civil suit was decreed in favour of the

plaintiffs (therein) on 26.02.2010. The Court held that the property

in hands of Shri Rirka was ancestral and coparcenary. Will in

favour of defendant No.1 was held to be illegal. Defendant No.1 was

held to be co-owner alongwith the plaintiffs S/Smt. Kalawati, Satya

Devi and Prakashi. He was held to be co-owner of the suit land but

only to the extent of 1/7th share in the suit land. The defendants in

Civil Suit No.142/1 of 2008 are defendants in the instant civil suit

as well. Plaintiff's case is that since the judgment and decree dated

26.02.2010 passed in Civil Suit No.142/1 of 2008 affects the

present suit filed by the them inasmuch as defendant No.1 has

been declared to be owner to the extent of only 1/7th share in the

suit land, therefore, by means of this application moved under

Order 6 Rule 17 C.P.C. they seek to challenge the aforesaid

judgment and decree.

4(iii)

Instant is a suit for specific performance of an

agreement to sell dated 24.09.2007, allegedly executed by the

defendants in faovur of the plaintiffs. By means of proposed

amendment, plaintiffs want to challenge the judgment and decree

dated 26.02.2010 passed in Civil Suit No.142/1 of 2008 in favour of

S/Smt. Kalawati, Satya Devi and Prakashi i.e. plaintiffs therein.

The plaintiffs of Civil Suit No.142/1 of 2008 are not parties in the

instant civil suit. The judgment and decree passed in favour of

these persons in Civil Suit No.142/1 of 2008, therefore, cannot be

set aside in the instant civil suit.

4(iv) The proposed amendment would completely change

the nature of the civil suit. The present civil suit is for specific

performance of an agreement to sell. By virtue of the proposed

amendment, relief for declaration and possession is being prayed

for. Declaration is in respect of challenging the judgment and

decree dated 26.02.2010 passed in Civil Suit No.142/1 of 2008,

which has attained finality between the parties to the lis. The

plaintiffs of that civil suit are not parties in the instant case.

4(v) The present civil suit has already traversed to the

stage of arguments. It was on 22.03.2012, that the defendants had

put forth the judgment dated 26.02.2010 passed in Civil Suit

No.142/1 of 2008 whereas the application for amendment of plaint

was filed by the plaintiffs on 26.07.2014.

4(vi) The judgments relied upon by the learned counsel for

the petitioners are not applicable to the facts of the case in hands.

In (2008) 13 Supreme Court Cases 658, titled Bharat Karsondas

Thakkar Versus Kiran Construction Company and others, the

issue was whether the amendment of the pleadings could have at

all been allowed by the High Court, since it completely changed the

nature and character of the suit from being a suit for specific

performance of an agreement to one for declaration of title and

possession followed by a prayer for specific performance of an

agreement of sale entered into between its assignee and venders of

assignees. The Hon'ble Apex Court held that the proper course of

action would have been not to challenge the consent decree in suit

for specific performance, but in a separate suit for declaration that

the consent decree ought not to have been passed and that the

same was not binding. Relevant observations are as under:-

"30. The proper course of action for Respondent 1 would have been to challenge the consent decree not in its suit for specific performance, but in a separate suit for declaration that the consent

decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specific performance, Respondent 1 has created its

.

own difficulties by substantially changing the

nature and character of the original suit, which is not permissible in law. If, as was held in Durga

Prasad case the impleadment of the appellant was only for the purpose of joining him in the conveyance if Respondent 1's suit ultimately succeeded; the ratio of the said decision would

possibly have been applicable to the facts of this case. Unfortunately, that is not the case here, since Respondent 1 has by amending the plaint

prayed for a declaration that the consent decree

obtained by the appellant was not binding on him and also for a declaration that the consent decree was null and void and was liable to be quashed."

In (2005)6 Supreme Court Cases 733, titled Kasturi

Versus Iyyamperumal and others, the Hon'ble Apex Court held

that necessary parties in a suit for specific performance of a

contract for sale are the parties to the contract or if they are dead,

their legal representatives, as also a person, who had purchased

the contracted property from the vendor. For determining the

question, who is a necessary party, tests are (1) there must be a

right to some relief against such parties in respect of the

controversies involved in the proceedings; and (2) that no effective

decree can be passed in absence of such parties. Relevant paras of

judgment are extracted as under:-

"7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 1o sub-rule(2)

CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties in a suit for specific performance of a contract for sale are the parties

.

to the contract or if they are dead, their legal

representatives as also a person who had purchased the contracted property from the

vendor. In equity as well as in law, the contract constitutes right and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or

without notice of the contract, but a person who claims adversely to the claim of a vendor, is, however, not a necessary party. From the above, it

is now clear that two tests are to be satisfied for

determining the question who is a necessary party. Tests are-(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no

effective decree can be passed in the absence of such party.

13. from the aforesaid discussion, it is pellucid that necessary parties are those person sin whose

absence no decree can be passed by the court or that there must be a right to some relief against

some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon the settle all the questions involved in the suit although no relief in the suit was claimed against such person."

4(vii) In the facts of the instant case, the civil suit for

specific performance of the agreement dated 24.09.2007 instituted

on 31.05.2008 by the plaintiffs against the defendants, by means

of an application under Order 6 Rule 17 CPC is being sought to be

converted into a (i) suit for specific performance of contract against

the defendants and (ii) suit for declaration for challenging the

judgment & decree passed against the defendants on 26.02.2010

in Civil Suit No.142/1 of 2008 in favour of S/Smt. Kalawati, Satya

Devi and Prakashi (plaintiffs therein), who are not parties in the

present civil suit. Plaintiffs, if aggrieved against the judgment and

decree dated 26.02.2010, have to seek appropriate legal recourse

for challenging the same. The said decree cannot be declared as