Himachal Pradesh High Court

Smt. Gayatri Sharma Wife Of vs Prakash Chand Goel on 7 November, 2022

Bench: Satyen Vaidya

                                                  Reportable/Unreportable




       IN THE HIGH COURT OF HIMACHAL PRADESH
                         SHIMLA




                                                   .
            ON THE    7th DAY OF NOVEMBER, 2022





                       BEFORE
          HON'BLE MR. JUSTICE SATYEN VAIDYA





    CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 348 OF
      2022 ALONG WITH CIVIL MISC. PETITION MAIN




                (ORIGINAL) NO.353 OF 2022.

    1. CMPMO No. 348 of 2022.

    Between:-
    1. SMT. GAYATRI SHARMA WIFE OF


       LATE    SH.   GITA   PRAKASH,
       RESIDENT OF VILLAGE MIHANI,
       TEHSIL    KANDAGHAT,    DISTT.




       SOLAN, (H.P.)





    2. MR. KARTIK SON OF LATE SH. GITA
       PRAKASH, RESIDENT OF VILLAGE
       MIHANI,   TEHSIL     KANDAGHAT,





       DISTRICT SOLAN, (H.P.) 28 YEARS.

                                         ....PETITIONERS.


    (BY MR. HARSH KHANNA, ADVOCATE)


    AND




                                  ::: Downloaded on - 07/11/2022 20:32:17 :::CIS
                          ...2...


    MS. SATYA VERMA, DAUGHTER OF LATE
    SH. ROOP RAM, RESIDENT OF VILLAGE




                                                 .
    KOTHON,   TEHSIL  SOLAN, DISTRICT





    SOPLAN (H.P.

                                 ....RESPONDENT.





    (BY MR. SUDHIR THAKUR, SR. ADVOCATE
    WITH MR. ANKUSH VERMA, ADVOCATE)




    Between:-
                   r   to
    2. CMPMO No. 353 of 2022.

    1. SMT. GAYATRI SHARMA WIFE OF
       LATE    SH.     GITA   PRAKASH,
       RESIDENT OF VILLAGE MIHANI,
       TEHSIL    KANDAGHAT,      DISTT.



       SOLAN, (H.P.) 65 YEARS

    2. MR. KARTIK SON OF LATE SH. GITA




       PRAKASH, RESIDENT OF VILLAGE
       MIHANI,   TEHSIL     KANDAGHAT,





       DISTRICT SOLAN, (H.P.) 28 YEARS.

                                       ....PETITIONERS.





    (BY MR. HARSH KHANNA, ADVOCATE)


    AND


    MS. SATYA VERMA, DAUGHTER OF LATE
    SH. ROOP RAM, RESIDENT OF VILLAGE




                                ::: Downloaded on - 07/11/2022 20:32:17 :::CIS
                                   ...3...


    KOTHON,   TEHSIL          SOLAN,       DISTRICT
    SOPLAN (H.P.




                                                         .

                                         ....RESPONDENT.
    (BY MR. SUDHIR THAKUR, SR. ADVOCATE





    WITH MR. ANKUSH VERMA, ADVOCATE)

    RESERVED ON : 2nd NOVEMBER, 2022.
    DECIDED ON : 7th NOVEMBER, 2022.


                    r        to
                Both these petitions coming on for orders this

    day, the Court passed the following:-

                           ORDER

Both these petitions are being decided by a

common order as identical questions of facts and law are

involved.

2. Respondent herein has filed a Civil Suit No. 90-

K/1 of 2007 against the petitioners herein, which is

pending before the learned Civil Judge, Kandaghat,

District Solan, H.P. Petitioners have also filed their

counterclaim which is also being adjudicated along with

the above noted civil suit.

...4...

3. The dispute in the above noted suit and

counterclaim is with respect to estate of late Shri Gita

Prakash Verma. Petitioners and respondent have put up

their respective claim and counterclaim seeking rights

over the estate of Shri Geeta Prakash Verma to the

exclusion of other.

4. Respondent herein/plaintiff has already led her

evidence and the case was fixed for the evidence of

petitioners. At that stage, petitioners moved two

separate application, though identical in nature, before

the learned trial Court, whereby the written statement

and counterclaim filed by them were sought to be

amended under Order 6, Rule 17 of the Code of Civil

Procedure. The amendment sought was by addition of

averments in para-3 of the counter claim and para-6 of

the written statements in following terms:-

"The complete adoption ceremony took place in presence of the biological parents Shri Rama Nand Sharma and Smt. Bimla Sharma, of counter claimant No.2 Shri Kartik, who was handed over by

...5...

them (Goad Dena) to counter claimant No.1 Smt.

.

Gaitri Devi and Late Shri Geeta Prakash, who

accepted the counter claimant No.2 as their son, after taking physical custody (Goad Lena) of the

child Kartik being counter claimant No.2. The ceremony was witnessed by the family members present, which was duly performed by Prohit Shri Hari Nand Sharma. After the ceremony counter

claimant No.2 is being recognized as son of late Shri Geeta Prakash and Smt. Gaitri Devi for all intends and purposes. After the ceremony

counter claimant No.2 Kartik remained with Shri

Geeta Prakash and Counter Claimant No.2 Smt. Giatri Devi, as their only son. In all the official records the name of counter claimant No.2 Shri

Kartik has been entered as son of Shri Geeta Prakash."

5. The original averments in para-6 of the written

statements were as under:

".......It is admitted that defendant No.2 was

born to real sister of defendant No.1, however, immediately on his birth, late Shri Geeta Prakash and the replying defendant No.2 adopted him according to Hindu customs and rites and ceremony for the same was duly performed according to Hindu customs and rites."

...6...

6. The original averments in para-3 of the

.

counterclaim were as under:

".......In year 1994 late Sh. Gita Prakash and

counterclaimant No.1 adopted counter claimant No.2 according to Hindu rites and custom."

7. The application for amendment in counterclaim

was registered as CMA no. 146-K/6 of 2022 and

application for amendment in written statement was

registered as CMA No. 147/K/6 of 2022. Learned trial

Court dismissed both the applications vide separate

orders dated 25.06.2022 on the same grounds. Hence,

these petitions.

8. I have heard Mr. Harsh Khanna, Advocate, for

the petitioners and Mr. Sudhir Thakur, Senior Advocate,

for the respondent and have also gone through the

record carefully.

9. Learned counsel for the petitioners contended

that the plea regarding adoption of petitioner No.2 by

late Shri Geeta Prakash Verma and petitioner No.1 was

originally incorporated in the written statement and

...7...

counterclaim. The amendment was sought only with a

purpose to explain, clarify and detail the factum and

mode of adoption with a purpose to obviate any

objection regarding insufficiency of plea.

10. On the other hand, learned senior counsel

representing the respondent has contended that plea

seeking amendment r to written statement and

counterclaim was not bonafide. The suit is pending since

2007. Respondent/plaintiff has already led her evidence.

The petitioners had failed to plead and reveal the reason

for not seeking amendment before commencement of

trial. The allowance of amendment at this stage would

have consequences of relegating the parties to denovo

trial of the case as the respondent/plaintiff will have right

to file replication in the suit and written statement in the

counterclaim. The necessity of leading further evidence

may also arise. He further contended that the only

motive of petitioners is to delay the trial of case.

...8...

11. Perusal of impugned orders reveals that the

petitioners have not been allowed to amend their written

statement and counterclaim, firstly, on the ground that

the petitioners had neither pleaded in the application nor

otherwise shown that they were precluded from seeking

amendment before commencement of trial despite

exercise of due diligence and secondly, the amendment

was not necessary for adjudication of the case as the

plea of adoption had already been raised by the

petitioners in their written statement as also in the

counterclaim.

12. The scope of power of this Court to exercise

jurisdiction under Article 227 of the Constitution of India

is restrictive and well defined. This Court in exercise of

aforesaid jurisdiction will not sit as Court of appeal to

reappreciate and reweigh the evidence or facts upon

which the determination under challenge is based. The

jurisdiction is to be exercised only to set right grave

dereliction of duty or flagrant abuse and violation of

...9...

fundamental principles of law or justice. Recently, in

Grament Craft vs. Prakash Chand Goel, (2022)4

SCC 181, Hon'ble Supreme Court has reiterated the legal

position in this behalf in following manner:-

"8. Having heard the counsel for the parties, we are clearly of the view that the impugned order is

contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High

Court under Article 227 of the Constitution of

India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is

based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the

final finding is justified or can be supported. The High Court is not to substitute its own decision on

facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the

nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such

...10...

discretionary relief must be exercised to ensure

there is no miscarriage of justice.

9. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass

Estate (P) Ltd.(2001)8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of

India is examined and explained in a number of decisions of this Court. The exercise of power under this article

involves a duty on the High Court to keep

inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is

not vested with any unlimited prerogative to correct all kinds of hardship or wrong

decisions made within the limits of the jurisdiction of the subordinate courts or

tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious

dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in

...11...

place of that of the subordinate court to

correct an error, which is not apparent on

the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no

evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

13.

Keeping in view the restrictive jurisdiction of

this court in exercise of powers under Article 227 of the

Constitution, the impugned orders cannot be interfered

with. Learned trial Court has rightly held that the

applications for amendment framed by the petitioners

were not inconsonance with the requirements of Rule 17

of Order 6 of the Code of Civil Procedure. The trial of the

case began with framing of issues long back. No reason

has been assigned as to what prevented the petitioners

from amending the pleadings before commencement of

trial. It was incumbent upon the petitioners to plead and