Punjab-Haryana High Court
Bhai Ashok Singh vs Bhai Dilawar Singh & Ors on 5 July, 2023
2023:PHHC:086172
C.R.No.8337 of 2018 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.104+240
Case No. : C.R.No.8337 of 2018 (O&M)
Date of Decision : July 05, 2023
Bhai Ashok Singh .... Petitioner
vs.
Bhai Dilawar Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Anil Kumar Garg, Advocate
for the petitioner.
Mr. Mohan Singh Chauhan, Advocate
for respondent no.1.
* * *
GURBIR SINGH, J. :
1. C.M. No.5472-C-II-2022 - This is application under Section
151 CPC for placing on record reply on behalf of respondent no.1 along with
Annexures R-1/1 to R-1/3. For the reasons mentioned in the application, the
same is allowed and reply on behalf of respondent no.1 along with
Annexures R-1/1 to R-1/3 are ordered to be taken on record. The
application stands disposed of.
2. Main Case - Prayer in this revision petition filed under Article
227 of the Constitution of India is for setting aside the order dated
29.11.2018 (Annexure P-5), passed by learned Civil Judge (Junior Division),
Malerkotla, whereby application dated 12.11.2018 (Annexure P-3), filed by
the petitioner, for amendment of written statement, has been dismissed.
3. Learned counsel for the petitioner submits that respondent no.1
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filed a suit for permanent injunction against the petitioner, who is his father
(defendant no.5 in the suit) and other family members, for restraining them
from dispossessing or interfering in his peaceful possession over House
No.425, measuring 4750 sq. yds., with boundaries mentioned therein,
situated at Village Bagrian, Tehsil Malerkotla, as per the site plan.
4. The petitioner (defendant no.5 in the suit) filed written
statement. An application was moved that during pendency of the case that
it came to the knowledge of defendants no.5 and 6 that earlier also, the
plaintiff (respondent no.1 herein) filed a suit for declaration bearing Suit
No.1 of 12.09.2001 titled Bhai Dilawar Singh vs. Bhai Jujhar Singh and
others regarding suit property and other properties. The said suit was
dismissed by the then District Judge, Sangrur, vide judgment and decree
dated 03.10.2006. So, the present suit of the plaintiff was barred under Order
2 Rule 2 CPC. The plaintiff contested the application on the ground that the
parties to the second suit were different and the cause of action to file both
the suits were also different.
5. Learned Trial Court, vide order dated 29.11.2018 (Annexure P-
5), dismissed the application holding that parties to the present suit were
totally different from the parties to the earlier suit, decided on 03.10.2006 by
the Court of the then District Judge, Sangrur. It was also held that the earlier
suit was a declaration suit whereas the present suit was simplicitor suit for
permanent injunction.
6. Learned counsel for the petitioner has argued that plaintiff in
the present case is seeking injunction by claiming that he is in possession of
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the suit property as owner whereas he has already lost a suit for declaration
regarding the same property. The learned Trial Court failed to take into
consideration the Trust Deed dated 28.03.1972, wherein it was specifically
stipulated that as both the sons namely Bhai Ashok Singh and Bhai Sikander
Singh were executants of Trust and their residences were in the Qila
property, their heirs would have right to live in the portions, in which they
were living.
7. Learned counsel for respondent no.1 has opposed the prayer
made by learned counsel for the petitioner. He has argued that the earlier
suit was only for declaration, rendition of accounts, removal of Trustee and
for permanent injunction. The copy of judgment dated 03.10.2006 passed in
that suit is Annexure P-6. The petitioner was not party to that suit. The
parties were different. The said suit was dismissed. The petitioner has
sought to take plea of Order 2 Rule 2 CPC. The proposed amendment is not
necessary at all. The amendment which is not necessary cannot be allowed.
8. Heard.
9. Since the instant case is filed simply for permanent injunction
and for protecting the possession and the application for amendment is with
regard to taking the plea of Order 2 Rule 2 CPC. The parties in the earlier
suit were different. So, the proposed amendment is not necessary for just
decision of the case. The amendment of pleadings can only be allowed if the
said amendment is necessary for just decision of the case. Since the
proposed amendment is not necessary at all, so the learned Trial Court has
passed the impugned order dated 29.11.2018 (Annexure P-5) in accordance
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with law.
10. Accordingly, finding no merit in the present revision petition,
the same is hereby dismissed, with no order as to costs.
11. Pending applications, if any, shall stand disposed of along with
this judgment.
July 05, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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