Punjab-Haryana High Court
Ranbir vs Chanderbhan And Others on 8 May, 2024
Neutral Citation No:=2024:PHHC:065704
CR-1672-2024 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-1672-2024 (O&M)
Date of Decision:-08.05.2024
Ranbir
... Petitioner
Versus
Chanderbhan and Other
... Respondents
-.-
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
Present:- Mr. Surinder Gaur, Advocate
for the petitioner.
None for respondents No.1 to 4.
Mr. Raghujeet Singh Madan, Advocate
for respondent No.5.
Respondents No. 6 to 9 are performa respondents.
****
RITU TAGORE, J. (Oral)
1. Challenge in this revision is to order dated 26.02.2024
(Annexure P-8), passed by learned Additional Civil Judge (Senior Division),
Bahadurgarh dismissing the application filed by the petitioner-plaintiff, for
amendment of the plaint.
2. Learned counsel for the petitioner contends that learned trial
Court wrongly dismissed the application for the amendment of plaint on the
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ground that it was moved belatedly with no explanation. However, the
petitioner provided a cogent explanation, pleading that during preparation of
arguments in the case, his counsel discovered certain relevant facts regarding
the inheritance of suit land by the petitioner's grandfather, Gordhan, from his
ancestor Ramjas s/o Mohan, the great grandfather, vide mutation No.5 dated
31.01.1909. These facts could not be incorporated initially due to non-
availability of document at the time of filing of the suit. Therefore, name of
great grandfather, Ramjas could not be mentioned in the pedigree-table and
consequently in the averments of the plaint.
3. Learned counsel stated that petitioner-plaintiff, filed a suit for
declaration with consequential relief of permanent injunction to declare the
sale deed No.3062 dated 04.07.2007, subsequent mutation No.1254 and
revenue record as illegal, null-&-void, not binding upon his rights. Learned
counsel submits that plaintiff's suit is based on ancestral nature of the
property and plaintiff's right in the same as a coparcener. To establish the suit
property as ancestral-coparcenary property, it is necessary to establish the
devolution of property by inheritance through four generations of male
lineage. For this, a pedigree-table is required to be placed on record. Learned
counsel stated that amendment is necessary for the just and complete
decision of the case and will not change the nature of the suit. In fact, if is
explanatory in nature. It is stated that purpose of amendment is to bring all
the material and relevant facts related to cause of action and relief on the
record, for just and proper decision of the case. A prayer is made to allow the
petition.
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4. On the contrary, learned counsel for the defendants supported
the order, stating that the facts which the petitioner-plaintiff intend to
incorporate in the plaint by way of amendment were already within his
knowledge and revenue record was also in his possession. It is stated that in
the previous suit filed by petitioner-plaintiff on the same ground and
regarding the same property, the plaintiff tendered the revenue record and
mutation No.5 dated 31.01.1909. So the claim of petitioner-plaintiff that he
was not aware of the pleading and did not have the record is clearly
untenable and contrary to factual position. Learned counsel stated that
petitioner-plaintiff by way of amendment, intends to fill up lacuna in his
case, which is prejudicial to the rights of the respondents, and is not
permissible in law.
5. Furthermore, it is urged that. based on the details contained in the
application, a case of exercise of 'due diligence' is not made out, which is a
necessary element for allowing the amendment. It is stated that an
amendment application was admittedly moved at the rebuttal stage. The
pleas taken in present revision petition and in the application for amendment
are contrary to each other. It is stated that, given the factual matrix, learned
trial Court has rightly disallowed the application. Learned counsel stated that
there is no merit in the petition and prayed for its dismissal.
6. I have heard learned counsel for the parties and have gone
through the record.
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7. Since the impugned order concerns the dismissal of application
for amendment of the plaint, it would be desirable to go through the
provisions of Order 6 Rule 17 CPC, which reads as follows:-
"17 Amendment of pleadings.-The court may at any
stage of the proceedings allow either party to alter or amend his
pleading 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 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 trial"
8. No doubt, all rules and procedure are hand made of justice but
the object of prescribing procedure is to advance the cause of justice. A
careful reading of proviso to Order 6 Rule 17 CPC, it is evident that
amendment of pleading cannot be allowed after the commencement of trial,
unless the party seeking amendment establish that he could not raise the
plea(s) before commencement of trial in spite of 'due diligence'. The
proviso is couched in mandatory form and puts an embargo on the
jurisdiction of the Court to the effect that before exercising such a
jurisdiction, the Court must come to the conclusion that in spite of due
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diligence, the party could not have raised the matter before the
commencement of the trial.
9. Adverting to the facts of present case, plaintiff wants to amend
the plaint, seeking to incorporate the name of Ramjas s/o Mohan, in the
pedigree-table to show that suit property devolved upon his grandfather
Gordhan from Ramjas (his great grandfather) vide mutation No.5 dated
31.01.1990, to prove the ancestral nature of the land; consequently, his right
in the suit property, having inherited from his four male lineage. According
to him, he came to know about the defect in the plaint when case was at the
stage of final arguments and his counsel was preparing the case; secondly the
omission resulted due to non-availability of revenue record at the time of
filing of the suit. On the above material grounds, the amendment in the plaint
and other resultant pleadings have been sought.
10. In grounds of this petition, the petitioner additionally pleaded
that while arguing other civil suit pending between the parties, counsel for
the plaintiff, came to know the defect in the plaint.
11. In the impugned order, learned trial Court specifically observed
that petitioner in other suit pending between the parties regarding the suit
land, presented mutation No.5 dated 31.01.1909 as (Ex.P-19) and is
represented by the same counsel, who represented him in other case, so the
pleas of inadvertence and non-availability of record are clearly not available
to him. Further, photocopy of the judgment dated 24.04.2023 titled Ranbir
Vs Chanderbhan and others, placed on record by counsel for the
respondents reinforces the said observations. The above observations as
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made by learned trial Court could not be faulted by the learned counsel for
the petitioner, being factually incorrect.
12. From the above facts pleaded by the petitioner, it is apparently
clear that petitioner has not accurately stated when the defect in the plaint
was discovered, and the case for exercising 'due diligence' is clearly not
made out in petitioner's favor. The burden is on the person, who seeks
amendment after commencement of the trial, to establish the jurisdictional
facts contained in the provision that in spite of due diligence such an
amendment could not have been sought earlier. The facts on record indicate
the petitioner failed to establish jurisdictional facts, as required under Order 6
Rule 17 CPC, unless such jurisdictional facts found to exist, the Court will
have no jurisdiction to allow the amendment application. In this regard,
reference can be made to the observations made in Vidyabai & Ors. Vs
Padmalatha & Anr, 2009 (2) SCC 409.
13. By way of the present amendment, petitioner wants to fill up the
lacuna in his case. If the amendment is allowed at this belated stage, it will
cause prejudice the respondents. This is one of the important factors to be
seen at the time of consideration of the application for amendment of
pleadings. Any right accrued to the opposite party cannot be taken away on
the account of delay in filing the application of amendment.
14. For the reasons, aforesaid, I find that the learned trial Court
rightly exercised the jurisdiction, in disallowing the application. There is no
illegality in his order, calling for any interference by this Court in this
revision-jurisdiction.
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15. Finding not merit in the revision-petition, it is hereby dismissed.
16. Since the main case has been decided, pending miscellaneous
application(s), if any, are also disposed of accordingly.
( RITU TAGORE)
08.05.2024 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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