Punjab-Haryana High Court

Dharam Pal vs Balwinder Kumar And Others on 9 September, 2024

Author: Alka Sarin

Bench: Alka Sarin

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH



                        120                                           CR-4092-2023 (O&M)
                                                                      Date of Decision : 09.09.2024


                          Dharam Pal                                                      ....Petitioner

                                                          VERSUS

                          Balwinder Kumar and Others                                   ....Respondents


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Onkar Rai, Advocate for the petitioner.

                                     Mr. Tarun Singla, Advocate for respondent Nos.1, 2, 4 and 6.


                        ALKA SARIN, J. (Oral)

1. The present revision petition has been filed under Article 227 of

the Constitution of India challenging the order dated 21.04.2023 whereby the

application filed by the plaintiff-petitioner for amendment of the plaint has

been rejected.

2. The brief facts relevant to the present lis are that the plaintiff-

petitioner, through a power of attorney holder, filed a suit for declaration to

the effect that he is owner in possession of the properties as detailed in the

plaint. Written statement was filed by the defendant-respondents. Issues were

framed. After three of the witnesses of the plaintiff-petitioner had been

examined, the present application was filed under Order VI Rule 17 of the

Code of Civil Procedure, 1908 for amendment of the plaint on the ground that

during the cross-examination of the power of attorney holder of the plaintiff-

petitioner it emerged that the possession had been taken by the defendant-

integrity of this order/judgment

respondent No.1 and hence the necessity for filing the application for

amendment seeking possession of the property in dispute. Reply was filed to

the application. Vide the impugned order dated 21.04.2023, the application

was dismissed.

3. Learned counsel for the plaintiff-petitioner would contend that

the plaintiff-petitioner is residing abroad and that the suit was filed through

the power of attorney holder. During the cross-examination of the power of

attorney holder it came on the record that the possession of the suit property

had been taken by the defendant-respondent No.1 and hence the necessity for

the amendment of the plaint to incorporate the prayer of possession. In support

of his argument, learned counsel for the plaintiff-petitioner has relied upon a

judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar

Aggarwal & Ors. vs. K.K. Modi & Ors. [2006 (2) RCR (Civil) 577] qua

the proposition that since the cause of action arose during the pendency of the

suit hence the amendment ought to have been allowed.

4. Per contra learned counsel for defendant-respondent Nos.1, 2, 4

and 6 has contended that the application for amendment is totally bereft of any

details as to when the possession was taken by the defendant-respondent No.1.

It is further the contention that in the absence of the date it cannot be said that

taking of the possession was a subsequent event. It is further the contention

that the plaintiff-petitioner knew all along that the possession was not with

him and chose not to file a suit for possession. In support of his arguments,

learned counsel for respondent Nos.1, 2 4 and 6 has relied upon judgments of

this Court in the cases of Kuljinder Kaur & Ors. vs. Gurbachan Singh

integrity of this order/judgment

Saini & Ors. [2023 (4) RCR (Civil) 335], Birender vs. Chanchal & Anr.

[2024 (1) RCR (Civil) 621] and Hari Singh vs. Balvir Singh & Ors. [2024

(1) RCR (Civil) 641].

5. Heard.

6. In the present case the plaintiff-petitioner filed a suit for

declaration to the effect that he is owner in possession of the properties as

detailed in the plaint as well as for a decree for permanent injunction

restraining the defendant-respondents from changing the nature of the

property and from raising any type of construction. Written statement was

filed. Issues were framed by the Trial Court on 21.09.2019. At the time of

filing of the amendment application, three witnesses of the plaintiff-petitioner

had been examined. The application for amendment was filed after cross-

examination of PW1 Sital Ram i.e. power of attorney holder of the plaintiff-

petitioner. It was averred in the amendment application that in his cross-

examination PW1 Sital Ram has stated that the possession was not with the

plaintiff-petitioner and hence the necessity for filing the application seeking

amendment. By way of amendment para 5-A was sought to be added and

certain changes were required to be made in para 8. The amendments sought

read as under :

"5-A. That the defendant no.1 is in possession of the

properties in dispute. The defendant no.1 has

amalgamated the property shown as Property no.1 in his

residential house by removing southern wall of the

boundary wall of plaintiff. The said wall was abutting the

integrity of this order/judgment

house/property of defendant no.1 situated on southern

side. By doing so, he has made his property and property

of plaintiff as one unit. Defendant no.1 is also using the

Gate of plaintiff for ingress and outgress. It is further

submitted that bricks of the said wall has also been used

by stealing the bricks. So, plaintiff is also entitled to the

relief of possession of his purchased property no.1. The

matter does not end here, defendant no.1 has also been

taken possession of property no.2 which is ownership of

plaintiff. Defendant no.1 has sown plants there illegally.

The plaintiff is also entitled to the relief of possession of

property shown as property no.2 which is purchased by

the plaintiff as detailed above."

And

"8. That the defendant no.1 on the basis of alleged will,

is threatening plaintiff/attorney to alienate/mortgage/

transfer the properties in question illegally forcibly and

in case, the defendant no.1 succeed in doing so, then the

plaintiff shall suffer heavy loss and injury which cannot

be compensated in terms of money."

7. Translation of the relevant portion of the cross-examination of

the power of attorney holder of the plaintiff-petitioner, which is stated to be

relied upon by the plaintiff-petitioner, reads as under :

integrity of this order/judgment

"...........It is correct that as of today we i.e. I and

Dharam Pal, were not in possession of the suit property.

Volunteered Balwinder Kumar has taken forcible

possession of the property in dispute. It is correct that

Balwinder Kumar has his residential house in the

disputed property which has been four walled and an iron

gate has been installed therein. It is incorrect that

Balwinder Kumar incurred expenses for installing the

said iron gate. It is correct that in this property an

electricity meter is also installed in the name of

Balwinder Kumar. It is incorrect that the mother of

Balwinder Kumar is also residing with him in the suit

property. I do not remember as to on which date, month

and year Dharam Pal gave me the power of attorney but

by estimation it was about 03 years ago. I do not

remember, however, Dharam Pal had gone to England

about 5-6 years ago. It is correct that Dharam Pal did

not deliver me the possession of the property in dispute at

the time of giving the power of attorney.........."