Rajasthan High Court - Jodhpur

Harisingh @ Harish vs Lrs Of Kesharsingh on 3 March, 2025

[2025:RJ-JD:10954]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                  S.B. Civil Writ Petition No. 5771/2024

Harisingh @ Harish S/o Shri Kishanlal, Aged About 62 Years, B/c
Mali, R/o Tilaknagar, Mahamandir Tisripol Ke Bahar, District
Jodhpur.
                                                                         ----Petitioner
                                        Versus
1.       Legal Heirs of Kesharsingh, S/o Santosh Singh:
1/1.     Smt. Hemlata W/o Shri Late Shri Kesari Singh,
1/2.     Yudhveer Singh S/o Late Shri Kesari Singh,
1/3.     Smt Rashmi D/o Late Shri Kesari Singh, W/o Shri Prakash
         Kachchhawa,
1/4.     Miss Khushdil D/o Late Shri Kesari Singh,
             All bly caste Mali, R/o Jeevandas Ji Ka Kua, Kisan
         Boarding Ke Piche, Bagar Chowk, District Jodhpur.
2.       Rajendra Singh S/o Somraj Tak, R/o Mathaniya Bhawan,
         Nagori Gate Ke Andr, District Jodhpur.
3.       Nareshraj Dhariwal S/o Late Shri Birdraj, B/c Jain, R/o
         Shivshakti     Nagar      Road No. 4, Mahamandir, District
         Jodhpur.
                                                                      ----Respondents


For Petitioner(s)           :     Mr. Bharat Boob, Adv.
For Respondent(s)           :     Mr. Abhinav Jain, Adv.



            HON'BLE MR. JUSTICE MUNNURI LAXMAN

Judgment

Judgment Reserved on : 17/02/2025

Judgment Pronounced on : 03/03/2025

1) The present writ petition has been filed challenging the

order dated 09.02.2024 passed by the learned Additional District

Judge No.3, Jodhpur Metropolitan in Civil Original Suit

No.14/2009 (NCV No.10844/2014), whereby the application filed

[2025:RJ-JD:10954] (2 of 8) [CW-5771/2024]

by the defendants seeking amendment of pleadings and relief in

the counter-claim, has been allowed.

2) The present petition has been filed at the instance of the

plaintiff in the suit.

3) The background of the facts reveled that the plaintiff filed

a suit to declare that the sale agreement dated 20.03.2006 and

Power of Attorney dated 30.03.2006 were not executed by him

and consequently, sought to declare the sale-deed dated

11.07.2006 as null and void. Additionally, he also sought relief

for cancellation of mutation made in pursuance of the sale-deed.

4) It appears that the plaintiff filed an application seeking

interim injunction. The same was dismissed by the trial court as

well as the appellate court and revisional court. The defendants

also filed written statement and counter-claim seeking perpetual

injunction restraining the plaintiff from interfering their

possession on the basis of agreement for sale and sale-deed.

5) During the pendency of the suit proceedings, the first

defendant died on 26.04.2017. The trial was also commenced

and the plaintiff's evidence was concluded. At that stage, the

defendants had filed the present application seeking amendment

of pleadings in the written statement and counter-claim. The

said application was allowed by the trial court vide order dated

09.02.2024. Therefore, the plaintiff filed the present writ petition

challenging the said order.

6) Heard the learned counsel for both the parties.

[2025:RJ-JD:10954] (3 of 8) [CW-5771/2024]

7) The main contention of learned counsel appearing for the

petitioner/plaintiff is that the criminal proceedings, which were

initiated at the instance of the defendants, culminated into filing

of the Final Report whereby the Investigating Officer clearly held

that the defendants have never been in possession as on the

date of filing of the suit and it was the plaintiff, who was in

possession. Therefore, allowing the amendment of the

declaration and recovery of possession amount to changing the

nature of the dispute. It is also his contention that the

amendment application was belated and the same was filed after

the evidence was commenced. Therefore, the application ought

not to have been allowed by the trial court unless the defendants

establish that in spite of due diligence could not bring the

additional facts and relief on record.

8) Per contra, the learned counsel appearing for the

respondents/defendants has submitted that the plaintiff taking

advantage of death of the first defendant and also pandemic

situation has illegally occupied the disputed suit land and such a

fact came to be known only when the legal heirs of the

defendants visited the disputed land on 30.01.2023. They came

to know that the plaintiff occupied the suit property in the year

2020-2021 taking advantage of lock down. Having known such

fact, the present application has been filed for amendment.

According to him, in spite of due diligence, the defendants could

not know the fact of illegal encroachment in the circumstances

of death of the first defendant. Therefore, the learned trial Judge

[2025:RJ-JD:10954] (4 of 8) [CW-5771/2024]

has rightly exercised his discretion to allow the application and

such order requires no interference.

9) The learned counsel for the respondents also submitted

that the plaintiff accepted the cost, as such, he has no right to

assail the order impugned. It is also his contention that the relief

sought by the plaintiff was for declaration and cancellation of the

documents and the amended relief sought is only declaration

and recovery of possession. Both the claims required to be

adjudicated in the same proceedings instead of relegating the

party to file a separate suit. Therefore, he prays for dismissal of

the writ petition.

10) I have considered the arguments of both the parties and

perused the impugned order as well as material available on

record.

11) In the light of the submissions made by both the parties,

the only point for consideration is whether the order impugned

requires any interference. It is undisputed fact that the plaintiff

filed the suit for declaration that the agreement of sale and

General Power of Attorney (GPA) were not executed by him and

consequently sought the sale-deed as null and void on the basis

of such document, and also sought cancellation of consequential

mutation basing on the above invalid documents. The

defendants' claim is that they were delivered possession in the

agreement for sale and subsequently, a sale-deed was executed

on the basis of General Power of Attorney given by the plaintiff.

Further, their claim is that they are in possession under the valid

[2025:RJ-JD:10954] (5 of 8) [CW-5771/2024]

sale-deed and their possession cannot be interfered. As such,

initially, he filed a suit for perpetual injunction against the

plaintiff. In this regard, it is appropriate to refer to Order VI Rule

17 of 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 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 question 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."

12) The amendment of pleadings are ordinarily allowed if

such amendment is necessary for the purpose of determining the

real question in controversy between the parties. However, such

an amendment shall not be allowed after the trial has been

commended unless it is shown that in spite of due diligence, the

party could not have raised the matter before the

commencement of trial.

13) In the impugned proceeding in the present case, there is

nothing on record to show as to when the trial has been

commenced. However, it is shown that the present application

was filed after the evidence of the plaintiff has been closed and

when the matter is coming for the defendants' evidence. The

stand taken in the application is that on account of death of first

defendant and taking advantage of pandemic situation, the

[2025:RJ-JD:10954] (6 of 8) [CW-5771/2024]

plaintiff has encroached upon the subject land in the year 2020-

2021. This fact came to the legal heirs of the first defendant's

knowledge only when they visited the disputed land on

31.01.2023. However, the plaintiff's reply to such application

revealed that he had been in possession of the property and he

never executed any agreement for sale or GPA and no

possession was delivered under the agreement for sale as

claimed by the defendant. He asserts that his claim has further

been substantiated by the Final Report filed in a First

Information Report lodged by the first defendant. According to

him, allowing the application would alter the nature of suit and

that too when the evidence has been commenced, it is improper

to allow such application. According to him, the learned trial

Judge exercised discretion, which is not proper in the facts and

circumstances of the case.

14) The trial Judge after satisfying with the explanation and

considering the reply has exercised its discretion in favour of the

defendants by allowing their application. The plaintiff's suit is not

a simplicitor suit for perpetual injunction. It also sought a relief

of declaration that agreement for sale and GPA, have not been

executed by the plaintiff and also sought a declaration that the

sale-deed executed on the basis of such documents is null and

void, and also sought cancellation of mutations, which were done

on the basis of such evidence. The defendants' amended relief

only sought recovery of possession and also sought declaration

that his illegal dispossession is invalid. The defendants would

[2025:RJ-JD:10954] (7 of 8) [CW-5771/2024]

succeed only if the validity of the document, which challenged by

the plaintiff, was found to be correct otherwise the suit has to be

dismissed. This means the issues in the amended relief and the

plaintiff's relief requires adjudication in a common suit. The relief

sought in the present case is recovery of possession, which is on

account of alleged claim of dispossession during the suit

proceedings. There is no doubt that the defendants can institute

independent suit for such relief. However, in order to avoid

multiplicity suit proceedings, the adjudication of the relief which

is amended, requires to be done in a pending suit and counter-

claim, which would be convenient for the party and save the

time of court and prevent the multiplicity of the litigation.

Further, the suit is of the year 2009 and relegating the defendant

to file an independent suit would delay the present suit as well,

since the adjudication in one suit have an effect on the other

suit.

15) Dealing with the contention of the learned counsel for the

defendants that the present writ petition is not maintainable for

the reason that the plaintiff has received the cost imposed in

allowing the application, this contention is unsustainable because

statutory or constitutional remedies cannot be defeated merely

because a cost has been awarded and received in allowing the

application. Therefore, though the application is filed after the

commencement of trial, for the reasons explained by the first

respondent, the trial court has rightly allowed the application,

which does not require any interference by this Court.

[2025:RJ-JD:10954] (8 of 8) [CW-5771/2024]

16) In the result, the present writ petition is disposed of as

follows:-

(i) The challenge made to the order dated 09.02.2024 passed by the learned Additional District Judge No.3, Jodhpur Metropolitan is rejected;

(ii) The trial court shall dispose of the civil suit as early as possible; and

(iii) The trial court is also directed to allow the plaintiff to lead further evidence in the light of the amendment and reserves his right to lead rebuttal evidence for the defendants' counter claim.

17) In the circumstances, no order as to costs.

18) Pending interlocutory applications, if any, shall stand

disposed of.

(MUNNURI LAXMAN),J

NK/