Pawan Kumar & Ors vs Ram Pal & Others
2024 Latest Caselaw 8938 HP

Himachal Pradesh High Court

Pawan Kumar & Ors vs Ram Pal & Others on 5 July, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

                                            ( 2024:HHC:4604 )




                      IN THE HIGH COURT OF HIMACHAL PRADESH,
                                    SHIMLA




                                                                          .
                                                Civil Revision No. 20/2024





                                                    Decided on: 05.07.2024

    Pawan Kumar & Ors.                                                 ...Petitioners





                                         Versus





    Ram Pal & others                      ....Respondents.
    ...........................................................................................
    Coram
    Ms. Justice Jyotsna Rewal Dua, Judge.


    Whether approved for reporting?1


    For the petitioner:              Mr. J.L. Bhardwaj, Sr. Advocate with Ms.
                                     Dhanvanti Devi, Advocate.



    For respondents:                 Mr.  Suneet    Goel,                Advocate,           for
                                     respondents No.1 to 9.




                                     Mr. Arvind Sharma,                   Advocate,          for





                                     respondent No.10.


    Jyotsna Rewal Dua, J.

An application moved under Order 6 Rule 17 of the

Civil Procedure Code by the defendants in their appeal before the

learned First Appellate Court, was dismissed on 12.02.2024. This

order has been questioned by them in this revision petition.

Whether reporters of the local papers may be allowed to see the judgment? yes

2. Background facts

2(i) A Civil Suit was instituted by the respondents on

.

02.07.2013 for declaration that the Will allegedly executed on

20.04.2013 by late Sh. Anant Ram in favour of the defendants was

not valid; It was shrouded with suspicious circumstances; The Will

did not create any embargo upon the plaintiffs' and proforma

defendants' rights to succeed to the property of late Sh. Anant Ram

(suit property). Consequential relief for permanent prohibitory

injunction was also prayed for. In the alternative, decree for

possession was also sought. Claim was opposed by the

defendants. Parties were put to trial on following issues framed by

the learned Trial Court:-

"1. Whether the plaintiffs and proforma defendants No.4 to

10 being successors in interest of late Shri Anant Ram are owners-in-possession of the suit property, as

alleged? OPP

2. Whether the plaintiffs are entitled for consequential relief

of permanent consequential relief of permanent prohibitory injunction, as prayed for? OPP

3. Whether in the alternative, the plaintiffs are entitled for possession of the suit property, as prayed for? OPP

4. Whether late Shri Anant Ram has executed a legal and valid Will of the suit property in favour of defendants No.1 to 3, as alleged? OPD

5. Whether the suit is not maintainable in the present form?

OPD

6. Whether the plaintiffs have no cause of action to file and maintain the present suit against the defendants? OPD

7. Relief."

.

2(ii) Learned Trial Court decreed the suit on 26.04.2018.

The Will dated 20.04.2013 propounded by the defendants with

respect to the property of late Sh. Anant Ram was declared as null

and void being not genuine/valid. Defendants were also restrained

by way of permanent prohibitory injunction from interfering in any

manner over the suit property. Decree for joint possession was also

passed in favour of the plaintiffs qua the suit property, in which, they

were to exercise rights to the extent of their shares to be devolved

on the basis of law of succession alongwith other legal heirs of late

Sh. Anant Ram. Declaration was also granted that the plaintiffs, the

proforma defendants alongwith defendants were the legal heirs to

succeed to the property of late Sh. Anant Ram.

2(iii) The defendants carried first appeal No.11-NL/13 of

2018 against the aforesaid judgment and decree before the learned

First Appellate Court. Five years after the institution of the first

appeal, the defendants on 16.05.2023 moved an application for

amendment of the written statement, taking recourse to order 6

Rule 17 CPC. This application was opposed by the plaintiffs

(respondents). Learned First Appellate Court on 12.02.2024

dismissed the application giving cause of action to the defendants

to institute the present revision petition.

.

3. Submissions

3(i) Learned Senior Advocate for the defendants

(petitioners) submitted that the amendment application was

necessary for the adjudication of the lis. The necessity to amend

the written statement had arisen consequent to the judgment and

decree passed by the learned Trial Court. In its judgment and

decree dated 26.04.2018, learned Trial Court had declared the

plaintiffs and the defendants entitled to succeed to the property of

late Sh. Anant Ram. Therefore even if the judgment and decree

passed by the learned Trial Court was to be affirmed, in that

eventuality the property had to go to all the legal heirs of late Sh.

Anant Ram and not just to the plaintiffs and the defendants. There

were other legal heirs, who had not been impleaded by the

plaintiffs. As such the amendment sought by the defendants in their

written statement for taking the objections that the suit of the

plaintiffs was bad for non-joinder of the necessary parties, who

were nearest collaterals of deceased late Sh. Anant Ram, had

become necessary. As per amended provisions of Order 6 Rule 17

CPC, the application for amendment could be taken at any stage of

the proceedings of the case. The object of the amendment prayed

for was to minimize the litigation. The amendment being prayed for,

would not change nature of the defence. The merits of the

amendment application were not required to be gone into at this

.

stage. Learned First Appellate Court had erred in law in dismissing

the application. In support of these contentions, reliance was placed

upon Surender Kumar Sharma Vs. Makhan Singh 2, Pandit

Ishwardas Vs. State of Madhya Pradesh & Ors.,3, Abdul

Rehman & Anr. Vs. Mohd. Ruldu & Ors. 4 and Andhra Bank Vs.

Abn Amro Bank N.V. & Ors.5

3(ii) Learned counsel for the plaintiffs-respondents

defended the impugned order. It was submitted that no new fact

had come to light after passing of the judgment & decree by the

learned Trial Court. The pedigree table had been drawn by the

plaintiffs in their plaint. Reference in this regard was made to paras-

5 and 6 of the plaint. Attention was also invited to the

corresponding paras in the written statement where the pedigree

table had been admitted as a matter of record. Learned counsel for

the respondents also referred to following provisions of Order 2

Rule 7 CPC:-

"Order II Rule 7. Objections as to misjoinder- All objections on the ground of misjoinder of cause of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of

(2009)10 SCC 626

(1979) 4 SCC 163

(2012) 11 SCC 341

(2007) 6 SCC 167

objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived."

.

Learned counsel for the respondents/plaintiffs

submitted that in case there was mis-joinder of the parties or

proper parties had not been impleaded as alleged by the

defendants, then such objections were required to be taken at the

appropriate time at the first available opportunity. Objections having

not been raised at the relevant time and the pedigree table having

been admitted by the defendants, then five years after passing of

the judgment and decree by the learned Trial Court, defendants

cannot be allowed to seek amendment of the written statement on

the ground that proper parties had not been impleaded. The same

facts were in existence at the time of filing of the written statement.

There had been no change in the facts. It was also submitted that

there had been absolute lack of due diligence on part of the

defendants in preferring the application for amendment of the

written statement.

4. On hearing learned counsel on both sides and

considering the case file, I am not inclined to interfere with the

impugned order. This is for the following reasons:-

4(i) The case file demonstrates that the parties were very

well aware about the controversy involved in the case. One of the

issues framed in the suit was as to whether the plaintiffs and

proforma defendants No.4 to 10 being successors in interest of late

Sh. Anant Ram were the owners in possession of the suit property?

.

In case the defendants had any grievance about non-impleadment

of some other persons, who could have laid claim to the property of

late Sh. Anant Ram as his successors, it was for them to place

objections at the appropriate stage. Having admitted the pedigree

table in the written statements & having not raised these objections

(non-joinder of parties) at any stage during the trial, it was not open

for them to seek amendment in that regard that too five years after

the filing of the appeal.

4(ii) The above facts also reflect complete absence of due

diligence on part of the defendants. No doubt, amendment under

Order 6 Rule 17 can be allowed at any stage, however, after the

commencement of the trial, the party seeking amendment has not

only to demonstrate that the amendment was necessary for the just

decision of the case but also to show exercise of due diligence. By

merely pleading in the application that in spite of exercise of due

diligence, the objections of non-joinder of necessary parties could

not be taken at the relevant time, will not absolve the

defendants/applicants from their obligation to show and

demonstrate due diligence, which in the instant case is absolutely

lacking.

4(iii) According to the defendants necessity to move the

amendment application arose on passing of the impugned judgment

.

& decree. This assertion is not tenable as the pleadings in the plaint

& written statement betray the above contention. The facts were

always in light, they never remained in shade. Nevertheless even if

this argument of defendants is taken at its face value then also

there is no explanation for the delay of five years after the passing

of judgment and decree dated 26.04.2018 taken by the defendants

in moving the amendment application.

4(iv) The amended application does not even disclose as to

who were the legal heirs of late Sh. Anant Ram and who allegedly

would have naturally succeeded to his property and who had not

been impleaded in the suit. The application was with generalized

averments that all legal heirs of late Sh. Anant Ram, who would

have succeeded to his property, had not been impleaded hence suit

was bad for non-joinder of parties. This objection taken before the

learned First Appellate Court, five years after filing of the appeal

was absolutely vague. Names of those alleged heirs were not

mentioned in the application. Instant is not a case where

amendment application had been moved on behalf of the legal heirs

or those, who wanted to exercise their rights to be impleaded in the

civil suit staking claim to the property of late Sh. Anant Ram. It is a

case where third person i.e. the defendants, who are already there

in the case, want to raise the objections that some other unknown

persons are required to be impleaded as parties to the case as they

.

are also entitled to succeed to the property of late Sh. Anant Ram.

The objections taken by the defendants five years after remaining

successful before the learned Trial Court were frivolous & rightly

disallowed by the learned Appellate Court.

5. For all the aforesaid reasons, no case for interference

with the impugned order is made out. Learned First Appellate Court

had justly dismissed the defendants' (petitioners') application under

Order 6 Rule 17 of the Civil Procedure Code. The petition is

dismissed. Parties are directed to appear before the learned First

Appellate Court on 02.08.2024.

It is made clear that observations made above shall

remain confined to the adjudication of this petition. Pending

miscellaneous application(s), if any, shall also stand disposed of.

Jyotsna Rewal Dua Judge July 5, 2024 (rohit)