Punjab-Haryana High Court
Pala Khan @ Pale Khan vs Avtar Singh Etc on 25 January, 2023
CR-1079-2019(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-1079-2019(O&M)
Date of decision:-25.1.2023
Pala Khan @ Pale Khan
...Petitioner
Versus
Avtar Singh and another
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Aakash Singla, Advocate
for the petitioner.
Mr.Himanshu Puri, Advocate for
Mr.Sunny K. Singla, Advocate
for respondent No.1.
****
H.S. MADAAN, J.
1. Briefly stated, the facts of the case are that plaintiff Avtar
Singh had brought a suit against defendant Pala Khan @ Pale Khan son
and Smt.Dhanno wife of Sadi Mohammad, both residents of village
Asdullapur (Baurhai Khurd), Tehsil Malerkotla, District Sangrur seeking
possession by way of specific performance of agreement to sell dated
6.7.2011 as well as writings dated 15.3.2012, 19.4.2012 and 23.10.2012
with regard to 7 bighas, 4 biswas and 4 biswasi of land along with share
of canal water and other appurtenant rights, such land being situated at
village Bheekhampur, Tehsil Malerkotla, District Sangrur on payment of
total sale consideration of Rs.34,60,800/- on adjusting amount of
Rs.19,00,000/- paid as advance money by the plaintiff to the defendants
and in the alternative suing for recovery of Rs.34,00,000/- i.e.
Rs.19,00,000/- paid as advance money by the plaintiff to the defendants
and Rs.15,00,000/- as damages, besides craving for grant of permanent
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injunction restraining the defendants from alienating the suit land in any
manner to anybody else except the plaintiff.
2. On getting notice, defendant No.1 had put in appearance and
contested the suit. During the course of proceedings, the plaintiff had filed
an application under Order 6 Rule 17 CPC seeking amendment of the
plaint contending that defendants have prepared a false memo of oral gift
dated 10.5.2010 and got instituted a Suit No.126 dated 26.10.2016, which
was decreed on 10.1.2019; in that suit they had not impleaded the plaintiff
and the plaintiff came to know about that decree on filing of written
statement by the defendants necessitating the amendment of plaint to
implead Shamshad and Sabar minor sons of Pale Khan through their
mother Rubia as defendants No.3 and 4, with consequential amendment in
the head note of the plaint.
3. That application was vehemently contested by the defendant
No.1 denying that Suit No.126 dated 26.10.2016 was collusive, further
submitting that Shamshad and Sabar have no right, title or interest in the
suit property, both of them through their mother had earlier filed an
application under Order 1 Rule 10 CPC for impleading themselves as
defendants in the suit, however that application was dismissed because the
plaintiff had opposed the same vehemently and therefore, is estopped
from moving a similar application, subsequently, therefore the application
be dismissed.
4. After hearing the rival contentions, the trial Court vide the
impugned order dated 2.2.2019 had allowed that application. For ready
reference, the operative part of the order is being reproduced as under:
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CR-1079-2019(O&M) -3-
4. This court has heard rival submissions made by
counsel for the applicant/defendant, as well as that of
respondent/plaintiff and have gone through the material placed on
record meticulously. After hearing both the sides, this court is of
the considered view that the purpose and object of order 6 Rule 17
CPC is to allow either party to alter or amend his pleadings in such
manner and as such terms as many be just. The power to allow the
amendment is wide and can be exercised at any stage of the
proceedings in the interest of justice on the basis of guide lines laid
down by the various High Courts and Hon'ble Apex court of the
Country. It is true that the amendment cannot be claimed as a
matter of Right and under all circumstances. But it is equally true
that the Courts while deciding such prayers should not adopt hyper
technical approach. Liberal approach should be the general rule,
Technicalities of law should not be permitted to hamper the Courts
in administration of justice between the parties. This court is of the
view that the plaintiff has sought the amendment on the ground that
in order to defeat the rights of the plaintiff defendants has prepared
false alleged memo of gift dated 10.05.2010 and on the basis of
said memo of gift, defendants has got decree in their favour. The
plaintiff wants to implead Shamshad and Sabar in the present suit,
which will not change the nature or stage of the suit. It is pertinent
to mention here that earlier application under Order 1 Rule 10 of
CPC for impleading Shamshad and Sabar in the present case has
been dismissed by this court. But now circumstances has been
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CR-1079-2019(O&M) -4-
changed as Shamshad and Sabar has obtained judgment and
decree dated 10.01.2019 in their favour on the basis of memo of
oral gift dated 10.05.2010 and plaintiff wants to challenge the said
memo of oral gift and decree dated 10.01.2019. This court is of the
view that the amendments sought by the plaintiff is required to be
allowed as both the suit are pertaining to same property.
Accordingly, the application stand allowed and disposed off in the
above terms. Since the plaintiff has challenged the judgment and
decree dated 10.01.2019 in favour of Shamshad and Sabar minors
through their mother Rubiya wife of Pale Khan resident of Village
Asdullapur ( Bhauri Khurd) Tehsil Malerkotla, therefore, they
became necessary parties, in whose absence the present suit cannot
be decided. Therefore, this court ordered to implead Shamshad
and Sabar minors through their mother Rubiya as defendants in the
present case. Amended Head Note and Amended Plaint is already
on file. Notice to Defendant no.3 and 4 be issued for 04/02/2019.
5. Such order left defendant No.1 Pala Khan @ Pale Khan
aggrieved and he has filed the present revision petition praying that the
same be accepted, the impugned order be set aside and application under
Order 1 Rule 10 CPC filed by the plaintiff be dismissed.
6. Notice of the revision petition was given to respondents and
respondent No.1/plaintiff has put in appearance through counsel.
7. I have heard learned counsel for the parties besides going
through the record and I do not find any fault with the impugned order.
8. The plaintiff had filed a suit for possession by way of specific
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CR-1079-2019(O&M) -5-
performance against Pala Khan @ Pale Khan and his mother Dhanno.
That suit was filed on 11.7.2014. According to the plaintiff now he has
come to know that a collusive decree has been got passed in favour of
Shamshad and Sabar sons of Pala Khan @ Pale Khan on the basis of oral
gift deed by instituting Civil Suit No.126 dated 26.10.2016, decreed on
10.1.2019. That suit was filed during the pendency of the suit for specific
performance instituted by Avtar Singh against Pala Khan @ Pale Khan
etc. The said decree thus appear to be result of collusion between the
present defendants and plaintiff in that suit, who are none else but sons of
defendant No.1 Pala Khan @ Pale Khan, who had filed the suit through
mother Rubiya, who is wife of Pala Khan @ Pale Khan. It appears that the
decree has been suffered to defeat the rights of the plaintiff to come up
with a plea that when defendants are said to have entered into agreement
to sell with the plaintiff at that time they were not owner of the suit
property that is way a memo or oral gift deed dated 10.5.2010 seems to
have been set up. The trial Court was justified to take into consideration
all those facts and then to allow the application. As regards dismissal of
the earlier application, it has been clarified that it was for the reason that
at that time judgment and decree dated 10.1.2019 in favour of the
applicant Shamshad and Sabar was not there, therefore, the presence of
Shamshad and Sabar before the Court for proper and complete
adjudication of the controversy and consequent amendment in the plaint
was required. The trial Court has not done anything wrong in allowing the
application.
9. It interesting to note that defendant No.1 Pala Khan @ Pale
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CR-1079-2019(O&M) -6-
Khan is feeling unnecessarily aggrieved by the order when there is no
occasion for him to do so and to file the present revision petition.
10. As regards the judgments referred to by learned counsel for
the revision petitioner i.e. Rajkumar Gurawara (Dead) Thr. LRs. Versus
M/s S.K. Sarwagi & Co. Pvt. Ltd. and another, 2008(4) RCR(Civil) 824,
Ajit Singh Versus Sulakhan Singh, 2003(4) RCR(Civil)427, Mata
Narinjan Kaur Versus Bhagwant Bhajan Singh, 1998(4) RCR(Civil) 61,
Gurinder Singh Versus Gulzar Singh and another, 2015(5)
RCR(Civil)609 and Bharat Karsondas Thakkar Versus M/s Kiran
Construction Co. & Ors., 2008(3) RCR(Civil) 57, those do not find
application to the present case due to different facts and circumstances
and the context in which such observations had been made.
11. I do not find any illegality or infirmity in the impugned order,
which might have called for interference by this Court while exercising
revisional jurisdiction.
12. Finding no merit in the revision petition, the same stands
dismissed.
The interim order dated 14.2.2019 stands vacated.
Since the main revision petition has been dismissed, the
miscellaneous application(s), if any, stand disposed of accordingly.
25.1.2023 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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