[Cites 14, Cited by 0]
Punjab-Haryana High Court
Rajrani vs Nikhil And Ors on 14 January, 2026
Author: Vikas Bahl
Bench: Vikas Bahl
CR-1062-2022 (O&M); -1-
CR-1061-2022 (O&M) and
CR-2141-2022 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
(279)
1. CR-1062-2022 (O&M)
Rajrani ....Petitioner
Versus
Nikhil minor through Subhash Chander as next friend and others
.....Respondents
2. CR-1061-2022 (O&M)
Rajrani ....Petitioner
Versus
Nikhil minor through Subhash Chander as next friend and others
.....Respondents
3. CR-2141-2022 (O&M)
Dharambir ....Petitioner
Versus
Nikhil minor through Subhash Chander as next friend and others
.....Respondents
Date of decision:-14.01.2026
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Ajay Jain, Advocate,
for the petitioner in CR-1061-2022 and
CR-1062-2022.
Mr. Ravi Ambawata, Advocate
for Mr. Sanjay Mittal, Advocate
for the petitioner in CR-2141-2022.
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CR-1062-2022 (O&M); -2-
CR-1061-2022 (O&M) and
CR-2141-2022 (O&M)
Mr. Mani Ram Verma, Advocate, and
Mr. Nipun Verma, Advocate
for respondent No.1.
****
VIKAS BAHL, J. (ORAL)
INDEX
Paras Pages
Background of the case 1-2 2-3
Brief facts of the case 3-8 3-7
CR-1061-2022 and CR-2141-2022
Arguments on behalf of respondent No.1 in 10 7-8
CR-1061-2022 and CR-2141-2022
Analysis and Findings in CR-1061-2022 and 11-18 8-13
CR-2141-2022
Arguments on behalf of the petitioners in 19 13-14
CR-1062-2022
CR-1062-2022
Analysis and Findings in CR-1062-2022 21-26 14-17
BACKGROUND OF THE CASE
1. This order would dispose of three revision petitions. The first
petition bearing CR-1062-2022 has been filed by the petitioner/defendant
No.1-Rajrani challenging the order dated 03.02.2022 passed by the trial
Court vide which the application filed by the defendant No.1/petitioner
under Order 7 Rule 11 CPC read with Section 151 CPC seeking rejection of
the plaint has been dismissed. The second petition bearing CR-1061-2022
has been filed by defendant No.1-Rajrani, in which the contesting
respondent is respondent No.1-Nikhil minor son of Shri Krishan Yadav
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through Subhash Chander as next friend (plaintiff). The challenge in the said
petition is to the order dated 03.02.2022 passed by the trial Court vide which
the application filed under Section 153 read with Order 6 Rule 17 CPC by
plaintiff-respondent No.1 has been allowed. The third petition i.e. CR-2141-
2022 has been filed by defendant No.2 challenging the same order dated
03.02.2022 vide which the amendment application under Order 6 Rule 17
read with Section 153 CPC has been allowed.
2. With the consent of the parties, CR-1062-2022 has been taken
up as the lead case and the documents have been referred to from the said
revision petition, unless it has been specifically stated that the document is
being referred to from a different revision petition.
BRIEF FACTS OF THE CASE
3. The brief facts of the present case are that Subhash Chander had
filed a suit for permanent injunction and mandatory injunction against six
defendants which included Rajrani (defendant No.1-petitioner in CR-1061-
2022) and Dharambir (defendant No.2-petitioner in CR-2141-2022). The
plea raised in the said suit was that the plaintiff was the owner of land in
question measuring 12 kanals and 19 marlas and that the defendants had
encroached upon the suit land. The said suit was filed on 27.12.2021. On
31.12.2021, an application was filed by defendant No.1 under Order 7 Rule
11 CPC read with Section 151 CPC for rejection of the plaint on the grounds
that the plaintiff had no right left in the suit land and that the plaint was
undervalued.
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4. In the reply filed to the said application under Order 7 Rule 11
CPC, it was stated by the plaintiff that prior to the filing of the application
under Order 7 Rule 11 CPC, the plaintiff had filed an application under
Section 153 read with Order 6 Rule 17 CPC to amend the defect and error in
the title of the plaint. It was further stated in the reply to the application
under Order 7 Rule 11 CPC that the suit had been filed for injunction and
also for removal of encroachment from the land comprised in Rectangle
No.118, Killa No.6/1, 7/1, therefore, as per Haryana Act No.11 of 1974 after
amendment in Clause V, the court fee is required to be paid on the valuation
of Rs.50/- per acre and that the plaintiff had already paid the requisite court
fee of Rs.50/-. Para 4 of the preliminary objections of the reply to the
application under Order 7 Rule 11 CPC is reproduced as under:-
"4. That the present suit has been filed for removal of
encroachment from the land comprised in Rect No. 118, Killa No. 6/1,
7/1, therefore, as per Haryana Act No. 11 of 1974 after amendment in
Clause V, the court fee is required to be paid on the valuation of Rs. 50/-
per acre and accordingly the value of the suit property is not more than
Rs. 10/- and the plaintiff has already paid court fee of Rs. 50/- over the
plaint, therefore, this application deserves dismissal with heavy costs."
5. On 31.12.2021 itself, as has been stated in the reply to the
application under Order 7 Rule 11 CPC, the plaintiff had filed an application
under Order 6 Rule 17 read with Section 153 CPC to amend the defect and
error in the title of the suit. It is the case of the plaintiff that the said
amendment application was filed prior in time to the application under Order
7 Rule 11 CPC. A perusal of the said application, which has been annexed as
Annexure P-4 along with CR-1062-2022, would show that it was stated
therein that the said Subhash Chander had special love and affection for his
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grandson Nikhil (minor) and the date of birth of Nikhil was 11.06.2006,
regarding which the birth certificate was also attached and it was further
stated that the said Subhash Chander had transferred the land detailed in para
No.1(a) of the plaint in favour of his grandson Nikhil, who is a blood
relative, vide registered release deed No.325 dated 19.04.2021 and the
mutation No.37671 was also sanctioned on 08.06.2021 in his favour and that
the parents of said Nikhil were not taking care of him and that the minor
child was living with the said Subhash Chander. It was further stated that in
the title of the suit, the name of Subhash Chander as plaintiff had been
wrongly mentioned and in fact the title of the suit should have been Nikhil
(minor) son of Shri Krishan Yadav through his next friend Subhash Chander
which mistake was an inadvertent mistake and thus, a limited amendment to
the said effect was sought. It was stated that the said amendment was
necessary for the proper and final adjudication of the case and for deciding
the real issue and that since the plaintiff was dominus litis, thus, he had a
right to seek the said amendment.
6. It is not in dispute that neither written statement had been filed
nor the issues had been framed on the date when the said application was
filed. It has further been stated before this Court that even till date the
written statement has not been filed and the issues have not been framed and
the suit is at the initial stage.
7. The trial Court vide order dated 03.02.2022 allowed the
application for amendment filed under Order 6 Rule 17 read with Section
153 CPC and while allowing the said amendment observed that it was not
disputed that Nikhil (minor) was shown as the owner of the suit property
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vide relinquishment deed bearing Vasika N.325 dated 12.04.2021 which was
registered on 19.04.2021. It was further observed that Subhash Chander was
the grandfather of Nikhil and the said aspect was also not disputed and that
as per the provision of Order 32 Rule 1 CPC, a suit filed by a minor is to be
instituted in his name through a person who is the next friend of the minor
and any person who is of sound mind and has attained majority may act as
the next friend or guardian and that Subhash Chander, who is the grandfather
of the minor, was competent to be the next friend of his grandson Nikhil. It
was further observed that as per the provision of Section 153 CPC, "the
Court may at any time or on such terms as to the costs or otherwise as it may
think fit, amend any defect or error in any proceedings in a suit and all
necessary amendments shall be made for the purpose of determining the real
question or issue raised by or depending on such proceedings" and that
keeping in view the said legal provision, the Court was of the opinion that
for determining and protecting the rights of the minor, the amendment was
very necessary and that since the case was at an initial stage, so no serious
prejudice would be caused to the respondents. It is the said order which is
the subject matter of challenge in CR-1061-2022 and CR-2141-2022.
8. The application filed under Order 7 Rule 11 CPC by the
defendant No.1 was dismissed vide order dated 03.02.2022 and it was
observed that the suit was a simpliciter suit for permanent injunction and
mandatory injunction and thus, the plaintiff was not bound to pay the court
fees on the basis of the market value of the suit property and that the suit
was not undervalued. The other objections raised with respect to Subhash
Chander having no right left was rejected in view of the amendment having
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been allowed. The said order is the subject matter of challenge in CR-1062-
2022.
ARGUMENTS ON BHEALF OF THE PETITIONERS IN
CR-1061-2022 AND CR-2141-2022
9. Learned counsel appearing for the petitioners in CR-1061-2022
and CR-2141-2022 have argued that a perusal of the plaint would show that
the suit was filed by Subhash Chander and not by the minor and in the
pleadings also, it was stated that it is the said Subhash Chander (plaintiff)
who was the owner of the suit property and it was after demarcation that the
said plaintiff had asked the defendants several times to restore the property.
It is submitted that in the plaint, the right of the minor was nowhere
mentioned. It is further submitted that the amendment in the said
circumstances could not have been allowed and the impugned order
allowing the amendment is illegal and deserves to be set aside. It is stated
that the entire nature of the suit is being changed as the plaintiff himself is
being changed, which is not permissible. It is further stated that provision of
Order 6 Rule 17 CPC cannot be invoked to change the name of the plaintiff.
ARGUMENTS ON BHEALF OF RESPONDENT NO.1 IN CR-1061-
2022 AND CR-2141-2022
10. Learned counsel for the respondent No.1, on the other hand, has
submitted that it is not in dispute that Subhash Chander had transferred the
property in favour of the minor grandson and thus, the minor grandson had a
right to file a suit through his next friend. It is further submitted that the
amendment is necessary for the proper and final adjudication of the case and
has been rightly allowed as the suit was at an initial stage and even the
written statement has not been filed by the defendants nor any issues have
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been framed, thus, the trial has not commenced. It is submitted that once the
minor has a right to file a fresh suit, the amendment would help in avoiding
multiplicity of litigation and that the present revision petitions have been
filed only in order to delay the proceedings. It is further submitted that the
said Subhash Chander in pursuance of the order allowing the amendment has
also filed an affidavit to the effect that Subhash Chander has no adverse
interest against the minor Nikhil and a copy of the said affidavit dated
15.02.2022 has been handed over to the Court during the course of
arguments and the same is taken on record and has been marked as "Mark
A". It is argued that it is within the powers of the Court to amend any defect
or error in any proceedings in a suit and also to make necessary amendments
and in the present facts and circumstances, the mentioned name of plaintiff
was apparently a mistake which has been rightly rectified by the Court.
ANALYSIS AND FINDINGS IN CR-1061-2022 AND CR-2141-2022
11. This Court has heard learned counsel for the petitioners as well
as learned counsel for respondent No.1 and is of the opinion that the order
dated 03.02.2022 vide which the application for amendment under Order 6
Rule 17 CPC read with Section 153 CPC has been allowed, is in accordance
with law and deserves to be upheld for the reasons detailed hereinafter.
12. It is not in dispute that the suit property was relinquished in
favour of the minor Nikhil vide relinquishment deed dated 12.04.2021 which
was registered on 19.04.2021 and thus, prior to the institution of the suit, the
said minor Nikhil had become the owner of the property in question. The
love and affection of grandfather Subhash Chander for the said minor Nikhil
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is apparent from the fact that he had transferred the said property without
consideration, which fact has not been disputed before this Court. It is
further not in dispute that the stage at which the application for amendment
was filed, even the written statement had not been filed by the defendants
nor the issues had been framed and as has been stated before this Court, even
till date the written statement has not been filed and the issues have not been
framed and thus, the suit is at an initial stage. Since the minor Nikhil is
admittedly the owner of the suit property, it cannot possibly be stated that
the said Nikhil through his next friend cannot institute a suit. Thus, even a
fresh suit on behalf of Nikhil minor through his next friend Subhash
Chander could have been filed. In order to avoid multiplicity of litigation,
the trial Court has rightly allowed the application and has rightly amended
the title of the suit to "Nikhil minor through Subhash Chander as the next
friend". The said amendment/correction is necessary for the proper
adjudication of the case as apparently after Subhash Chander had transferred
the property by virtue of a registered deed in favour of his grandson, he is
no longer the owner of the suit property and it is the minor Nikhil who is the
owner of the suit property and it is the rights of the minor which have to be
adjudicated in the case.
13. It is a matter of settled law that all amendments which are
necessary for determining the real question in controversy should be
allowed. Reference in this regard can be made to the judgment of the
Hon'ble Supreme Court of India in the case of "Rajesh Kumar Aggarwal &
Ors. vs. K.K. Modi & Ors." reported as 2006(2) RCR (Civil) 577. The
relevant portion of the said judgment is reproduced hereinbelow:-
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"13. The object of the rule is that Courts should try the merits of the
case that come before them and should, consequently, allow all
amendments that may be necessary for determining the real question in
controversy between the parties provided it does not cause injustice or
prejudice to the other side.
xxx xxx xxx
17. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. Likewise, it should
not record a finding on the merits of the amendment and the merits of
the amendment sought to be incorporated by way of amendment are not
to be adjudged at the stage of allowing the prayer for amendment. This
cardinal principle has not been followed by the High Court in the
instant case.
xxx xxx xxx
Since the Court has entered into a discussion into the correctness or
falsity of the case in the amendment, we have no other option but to
interfere with the order passed by the High Court. Since it is settled law
that the merits of the amendment sought to be incorporated by way of
amendment are not to be adjudged at the stage of allowing prayer for
amendment, the order passed by the High Court is not sustainable in
law as observed by this Court in Sampath Kumar vs. Ayyakannu and
Another, (2002) 7 SCC 559.
14. This Court is of the opinion that the amendment/correction
made was necessary. Under Section 153 CPC, the Court has the power to
amend any defect or error in any proceeding in a suit and all necessary
amendments are required to be made for the purpose of determining the real
question or issue raised by or depending on such proceeding. The provision
of Section 153 CPC is reproduced herein below: -
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"153. General power to amend. -- The Court may at any time, and
on such terms as to costs or otherwise as it may think fit, amend any
defect or error in any proceeding in a suit; and all necessary
amendments shall be made of the purpose of determining the real
question or issue raised by or depending on such proceeding."
15. The above-said provision in the opinion of this Court, more so,
in the peculiar facts and circumstances of the present case, would include the
power to rectify an error or defect/or carry out necessary amendments in the
title of the suit, including in the name of the plaintiff. A perusal of the plaint
would show that it had been stated that the plaintiff is the owner of the land
in question. It is not in dispute that on 27.12.2021 when the plaint was
drafted it was Nikhil minor who was the owner of the suit property. It is the
case of Subhash Chander in the application for amendment of the defect and
error in the title of the plaint, that it was on account of an inadvertent
mistake that instead of making Nikhil minor son of Shri Krishan Yadav
through his next friend Subhash Chander the plaintiff, Subhash Chander has
been shown as the plaintiff. The provision of Order 6 Rule 17 CPC is with
respect to amendment of pleadings. It cannot be said that if there is any
mistake in the headnote or in the mentioning of the name of the parties that
the same cannot be amended or rectified by the Court or an application in
the said regard cannot be moved by a party. There could be several cases
where the names of the parties have been wrongly mentioned or the parties
have been wrongly impleaded or the parentage/address of the parties have
been wrongly given. It cannot be said that rectification of the said errors
would not fall within the parameters of Section 153 CPC and Order 6 Rule
17 CPC. The duty of the Court is to determine the real question which arises
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for adjudication and for the said purpose the Court has the power to permit
all necessary amendments and to rectify defects/errors.
16. Moreover, at any rate, once the trial Court had exercised its
jurisdiction and had allowed the amendment, this Court while exercising its
powers under Article 227 of the Constitution of India, would not do injustice
to the parties, more so, to the plaintiff by setting aside the said order. Since
the issues have not been framed, the trial has not commenced, the case is at
an initial stage and the minor has every right to file even a fresh suit, thus, in
order to finally adjudicate the case and in order to avoid multiplicity of
litigation, the application for amendment/curing the defect has been rightly
allowed. The trial Court while passing the impugned order dated 03.02.2022
has also further rightly observed that Subhash Chander, who is the
grandfather of the minor and who has relinquished the property in favour of
the minor grandson, could be the next person through whom the suit could
be filed by the minor, after taking into consideration the provision of Order
32 Rule 1 CPC. Moreover, the said Subhash Chander has already filed an
affidavit dated 15.02.2022 before the trial Court (which has been taken on
record and marked as "Mark A") stating that the said Subhash Chander has
no adverse interest against the minor Nikhil. The fact that he had transferred
the suit property in favour of Nikhil without consideration also establishes
the said fact that he has no adverse interest against the minor.
17. The Hon'ble Supreme Court in the case of "Shalini Shyam
Shetty and another Vs. Rajendra Shankar Patil", reported as (2010) 8
Supreme Court Cases 329, had observed that the High Courts cannot, at the
drop of a hat, in exercise of its power of superintendence under Article 227
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of the Constitution, interfere with the orders of tribunals or courts inferior to
it. Nor can it, in exercise of this power, act as a court of appeal over the
orders of court or tribunal subordinate to it. It was also observed in the said
judgment that a statutory amendment with respect to Section 115 of the Civil
Procedure Code does not and cannot cut down the ambit of High Court's
power under Article 227, but at the same time, it must be remembered that
such statutory amendment does not correspondingly expand the High
Court's jurisdiction of superintendence under Article 227. The power of
interference under this Article is to be kept to the minimum to ensure that
the wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence in the
functioning of the tribunals and courts subordinate to the High Court. It was
also observed that the power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial discipline.
18. Keeping in view the above, this Court is of the opinion that the
impugned order does not call for any interference by this Court while
exercising its powers under Article 227 of the Constitution of India and
accordingly, the impugned order is upheld and the present revision petitions
i.e. CR-1061-2022 and CR-2141-2022, being meritless, deserve to be
dismissed and are dismissed.
ARGUMENTS ON BEHALF OF THE PETITIONER IN CR-1062-2022
19. Learned counsel for the petitioner while challenging the order
dated 03.02.2022 whereby an application under Order 7 Rule 11 CPC has
been rejected, has submitted that in view of the dismissal of CR-1061-2022,
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the surviving issue would be that the court fees on the basis of the market
value of the suit property has not been affixed and thus, the suit is
undervalued. It is submitted that a careful reading of the plaint would show
that in fact the plaintiff is seeking possession of the property although he has
filed a suit for permanent and mandatory injunction directing the defendants
to remove the illegal encroachments. It is further submitted that since
possession is being sought, thus, the Court fee required to be affixed by the
plaintiff is as per the market value of the suit property.
ARGUMENTS ON BEHALF OF RESPONDENT NO.1 IN CR-1062-2022
20. Learned counsel for the respondent No.1, on the other hand, has
submitted that as per settled law, the defendants cannot sustain a revision on
the issue of court fee as the same is an issue between the plaintiff and the
Court and there is no prejudice caused to the defendants. It is further
submitted that the present suit is a simpliciter suit for permanent injunction
and mandatory injunction and as per Haryana Act No.11 of 1974 after
amendment in Clause V, court fee is required to be paid on the valuation of
Rs.50/- per acre and the correct fee has been paid/affixed. It is further
submitted that in the application there is no reference made that any house or
garden exists at the suit property.
ANALYSIS AND FINDINGS IN CR-1062-2022
21. It would be relevant to note that a Co-ordinate Bench of this
Court in case titled as "Arun Kumar Goyal Vs. Payal Aggarwal, reported as
2013(4) R.C.R. (Civil) 93, had observed that no revision would lie at the
instance of the defendant against the decision on the question of inadequacy
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of court fee as the question of non-payment of Court fee is a dispute between
the litigant and the Registry. Reliance in the said judgment was placed upon
various judgments. Paras No.9 and 10 of the said judgment are reproduced
as under: -
"9. Admittedly, the dispute is of the court fee. Learned counsel
for the respondent before raising any argument on the merits of the case
has raised a preliminary objection that no revision is maintainable in
case of payment of court fee. It has been held in various judgments that
the question of non-payment of court fee is a dispute between the
litigant and Registry whether it arises at the stage of presentation of
plaint or the appeal and the respondent is normally not interested in
such a dispute. As per ratio of judgment in case titled Shamsher Singh v.
Rajinder Prashad, 1973 PLJ 686, revision or appeal can be filed if there
is a dispute of jurisdiction. In case the question of jurisdiction is not
involved then revision cannot be filed. This issue was interpreted by the
Kerala High Court in Vasu v. Chakki Mani, AIR 1962 Kerala 84
wherein it was held that no revision will lie against the decision on the
question of inadequacy of court fee at the instance of the defendant. The
judgment of Apex Court in Sri Rathnavarmarajas case (supra) was also
followed by the Full Bench of this Court in M/s. Arjan Motors v.
Girdhara Singh and others, 1978 PLJ 36. As per Full Bench judgment
of this Court it was held that question of court fee cannot be agitated by
the litigants in a petition under section 115 of the Civil Procedure Code.
10. The present case is squarely covered by a judgment of Full
Bench of this Court rendered in M/s. Arjan Motors case (supra).
Accordingly, in view of the facts as mentioned above and the settled
position of law in case of payment of court fee, no revision is
maintainable.
Dismissed.
Revision Dismissed"
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22. No contrary judgment has been cited on behalf of the petitioner.
In view of the above, the present revision petition filed by the petitioner
raising the sole issue that adequate court fee has not been paid is held to be
not maintainable.
23. It would be relevant to mention that the issue with respect to
court fee has to be considered in the light of the arguments raised by both the
parties and also after taking into consideration the provisions of Section
7(v), Sections 9 and 10 of the Court Fees Act, 1870. Even assuming the
arguments of the petitioner/defendant No.1 is accepted on its face value to
the effect that in effect the plaintiff is seeking possession, then also, as per
the above-said provisions, it has to be determined as to whether the
possession sought is with respect to land, house or garden as the Court fee
for seeking possession of land is different from the court fee required to be
affixed when possession of house or garden is sought.
24. A perusal of the plaint would show that the property in question
is stated to be in revenue estate of Rewari and bears khasra number and thus,
prima facie appears to be an agricultural land. However, all the said aspects
require evidence to be led and thus an issue regarding the same is required to
be framed and both the parties are required to be given the right to lead
evidence regarding the same. It is not in dispute that the defendants are yet
to file the written statement.
25. In view of the above, CR-1062 -2022 is disposed of with the
following observations/directions: -
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(i) It would be open to the defendants to take a specific plea with
respect to inadequacy of court fee in the written statement and
in case any such plea is taken, then, an issue regarding the same
would be framed by the trial Court in addition to the other
issues which arise in the case.
(ii) It would be open to all the parties to lead all evidence in support
of the said issue along with the other issues and the trial Court
would decide the said issue along with other issues at the stage
of final arguments after taking into consideration the pleadings
and evidence led by the parties, dehors the observations made in
the impugned order with respect to the aspect of court fee.
26. Pending application(s), if any, stand disposed of in view of the
above-said order.
January 14, 2026 (VIKAS BAHL)
naresh.k. JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
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