Sukhdev Singh And Ors vs Pranav And Ors
2024 Latest Caselaw 17411 P&H

Punjab-Haryana High Court

Sukhdev Singh And Ors vs Pranav And Ors on 19 September, 2024

Author: Pankaj Jain

Bench: Pankaj Jain

                                Neutral Citation No:=2024:PHHC:124174




[122]       IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                 CR-4726--2024
                                 Date of Decision : 19.09.2024

Sukhdev Singh and others                                  ...Petitioners

                                 versus

Pranav (minor) and others                                 ....Respondents


Coram :     HON'BLE MR. JUSTICE PANKAJ JAIN


Present:    Mr. Vijay Rana, Advocate for the petitioners.

             ***

PANKAJ JAIN,
       JAIN J. (ORAL)

[1] Present revision petition is directed against order dated

08.05.2024 passed by the Civil Judge (Junior Divison), Nakodar whereby an

application filed by the plaintiff, seeking amendment of plaint has been

allowed.

[2] Plaintiff was a minor, filed suit for declaration, claiming that he

along with his father are joint owners in possession of the suit property being

coparceners. Challenge was further made to the mutation dated 10.04.2019

sanctioned in favour of defendant No.6 with respect to land measuring 07

kanals 04 marlas of the suit property on the basis of the sale deed executed

by defendant No.1, mortgage deed dated 20.09.2013 and sale deed dated

02.12.2019 executed executed by defendant No.1 No.1-Sukhdev Sukhdev Singh in favour of

defendant No.7. Suit was resisted by defendant Nos.1, 2 & 5 by filing joint

written statement even before the issues could be framed. Present

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application, seeking amendment of the plaint was filed whereby, plaintiff

prayed for amendment of the plaint to challenge decree dated 24.06.1972

suffered by Kesar Singh, great-great great great grand grand-father father in favour of defendant

No.1 The application was resisted by the defendants, clai claiming ming that decree

being of the year 1972 (24.06.1972) has a legal sanctity attached to which

the same being more than 20 years old and the relief claimed by way of

present suit being barred by limitation, the amendment cannot be allowed.

[3] Trial Court vide impugned order allowed the application filed

by the plaintiff, seeking amendment of the plaint, holding that the suit is at

initial stage and the application was moved by the plaintiff for production of

documents relied upon by the defendants. The de defendants fendants were ordered to

produce on record the mutation bearing No.2141 and judgment and decree

dated 24.06.1972. Defendants though placed on record the mutation but did

not provide copy of judgment and decree, claiming that the same was not

traceable. Trial Trial Court further opined that the amendment sought by the

plaintiff was necessary for proper adjudication of the lis between the parties

and thus allowed the application.

[4] Counsel for the petitioners, while assailing the impugned order

has eloquently argued that the decree is more than 52 years old and thus the

same cannot be allowed to be assailed in the present civil suit. More so,

when the same amounts to altering the nature of the suit and the relief is

barred by time. In order to hammer-forth hammer forth hhis is contention, he places reliance

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upon 'Basavaraj Basavaraj versus Indira and others', Law Finder Doc Id #

2510571,, 'Shiv 'Shiv Gopal Sah @ Shiv Gopal Sahu versus Sita Ram Saraugi

679 'Revajeetu and others', 2007(2) RCR (Civil) 679, Revajeetu Builders & Developers

versus Narayanaswamy & Sons & others', 2010(1) RCR (Civil) 27,

'Rajkumar Rajkumar Gurawara (Dead) through LRs versus M/s. S.K. Sarwagi

and Company Private Limited and another', 2008(4) RCR (Civil) 824.

[5] I have heard learned counsel for the petitione petitioners rs and have

carefully gone through the record of the case.

[6] In order to appreciate the contention rasied by counsel for the

petitioners, it will be apt to peruse bare provision as contained in Order 6

Rule 17 CPC, which reads as under:-

under:

"Amendment of Pleadings : The Court may at any stage of the proceedings allow either party to alter or amend his pleadings 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 bef before ore the commencement of trial."

trial.

[7] Bare perusal of the provision would reveal that it is a provision

enabling the Court to allow either party to alter or amend his pleadings at

any stage in such manner which may be just. It further clothes the Courts to t

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allow all amendments necessary for the purpose of determining real question

in controversy between the parties. However, the main provision is subject

to proviso, which provides that no application for amendment shall be

allowed lowed after the trail has commenced unless Court concludes that inspite

the party seeking amendment could not have been raised the matter before

the commencement of the trial despite due diligence. The same has been

interpreted by Hon'ble the Supreme Court in the case of 'Rajkumar

Gurawara (Dead) through LRs' (supra) (supra). The judgment has also been

relied upon by counsel for the petitioners.

petitioners. Apex Court observed that ::-

" To put it clear, Order 6 Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings eedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-

Pre trial amendments are to be allowed liberally than those which are sought to be made after fter the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement encement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. "

[8] Thus, the issue before this Court is whether amendment sought

has been rightly allowed by the Trial Court or not? Keeping in view that the

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trial is yet to commence, the test will be as to whether the amendment sought

is necessary for the purpose of determining the real question in controversy

between the parties.

parties The case in hand, plaintiff plaintiff-the grand son of defendant

No.1 is seeking declaration in the property, claiming the same to be

coparcenary property. He is enforcing his right by bbirth irth being coparcener.

Defendant No.1 denies the property to be a coparcenary and wants to rely

upon decree alleged to have been executed by his father i.e. great grand-

grand

father of the plaintiff. Thus, the main controversy between the parties would

be whether her the suit property is coparcenary or not. Defendant has

propounded decree dated 24.06.1972 to claim the property to be self

acquired.

[9] In view of above, it can't be denied that the decree dated

24.06.1972 relied upon by defendant No.1 to deny the cclaim laim of the plaintiff

needs to be adjudicated.

adjudicated It is in fact in issue to decide real lis between the

parties. Having held so, this Court finds that the reliance placed upon by

counsel for the petitioners on the ratio of law laid down in Hon'ble the

Supreme Court in the case of 'Basavaraj's Basavaraj's (supra) is not applicable to the

facts of the present case for more than one reason. In ''Basavaraj's case

(supra), amendment was sought after the commencement of the trial and

thus Hon'ble the Apex Court non suited amendment seeking party on the

ground that it will cause prejudice to the party opposite opposite. In the present case,

the trial is yet to commence and thus it cannot be said that by incorporating

the amendment sought by the plaintiff, any prejudice will be caused ed to the

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petitioners.

[10] Resultantly, this Court finds no reason to interefere in the well

reasoned order passed by the Trial Court.

[11]           Revision petition is dismissed
                                    dismissed.



                                                       (PANKAJ JAIN)
                                                            JUDGE
19.09.2024
'R. Sharma'

                      Whether speaking/ reasoned   :      Yes/No
                      Whether reportable           :      Yes/No




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