Uttarakhand High Court
Ijhar vs Abdul Hasan And Others on 27 June, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 16 of 2022
Ijhar S/o late Irshad .....Revisionist
Versus
Abdul Hasan and others .... Respondents
Present :
Mr. Nikhil Singhal, Advocate, for the revisionist.
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
A very peculiar situation has emerged for
consideration during the course of arguments in this Civil
Revision, wherein, the defendant/revisionist, has put a
challenge to the impugned order dated 20th January, 2022,
whereby, the Court of Civil Judge (Senior Division),
Haridwar, while considering the Application Paper No.
98Ka/1, filed by the defendant/revisionist under Order 6 Rule
17 of the C.P.C. in Original Suit No. 291 of 2015, Abdul
Hasan and others Vs. Akhtar and another, had rejected the
application.
2. If the application itself is taken into consideration,
which was preferred by invoking the provisions contained
under Order 6 Rule 17 of the CPC, the factual amendment,
which was attempted to be incorporated by the said
application was qua the effect of registered sale deed dating
back to 19th April, 1945, with regard to the part sale of the
property by the sale deed dated 28th May, 1956 and the effect
of the hibenama of 1964, which has been take as to be a
source of documents to contend, that the defendant is in
possession over the disputed property, and based on these
aforesaid documents, which were the documents of title
proclaimed by the defendant, the Suit was being contested.
3. If the amendment application is taken into
consideration, particularly, the part, which is extracted
hereunder, the only reason for filing belated application of
26th August, 2021, was "the knowledge", of the aforesaid
facts and documents had been recently imparted to the
defendant.
"gky gh esa okn dh rS;kjh gsrq feyus ij mDr rF; voxr
djk;s x;s ftUgsa tokcnkos esa vafdr djk;k tkuk vR;Ur vko";d
gSA"
4. Hence, the learned counsel for the revisionist
submits, that when the fact of imparting of knowledge of
aforesaid document was attributed to the defendant recently,
his application will not be barred by limitation and laches in
view of the implications of the proviso to Section 115 of the
CPC, as amended by way of substitution of Act No. 22 of
2022.
5. The learned counsel for the revisionist has harped
upon the exception provided under the proviso, which uses
the work "in spite of due diligence". In spite of due
diligence means, that if a person is ignorant of the fact, and
he could not plead it in his pleadings.
6. But the fact, which was sought to be amended
pertaining to the document of 1945, 1956 and 1964
respectively, which goes to the foundation of settlement of
rights, between the parties to the proceedings and more
importantly, the aspect, which has been pleaded therein
pertaining to the knowledge to the application of these
documents, in order to oust the restrictions imposed by the
proviso to Order 6 Rule 17 of the CPC. The logic assigned
by the defendant in the application is not acceptable by this
Court, for the reason being, that if the affidavit, which has
been filed in support thereto the amendment application
before the Court of Civil Judge (Senior Division) is taken
into consideration, the aforesaid fact of knowledge has been
pleaded, based on personal knowledge and "legal opinion".
The fact of knowledge of a document to a party, can never be
attributed on the basis of the legal opinion, by a professional
in order to carve out an exception.
7. In order to carve out an exception, the learned
counsel for the revisionist refer to the proposed amendment
sought in para 2-A and 2-B. Even if the swearing clause of
the said proposed amendment is still taken into consideration,
that too, is yet again based upon the personal knowledge and
"legal opinion".
8. Knowledge of a factum of document, can never be
on the basis of the legal opinion, and that too, when the
document relates to the years of 1954, 1956 and 1964
respectively.
9. Even if the finding, which has been recorded by
the Court below is taken into consideration, particularly, the
observation made in para 6 of the judgment, it had observed
that the Suit, in question, was instituted by the plaintiff as
back as on 5th October, 2015. The defendant, herein, had
filed the written statement, denying the plaint averments by
filing the written statement on 27th January, 2016, and when
the trial has commenced, as a consequence of the formulation
of the issues and the Trial and when it has reached at the
stage of evidence, the amendment application was preferred
only on 26th August, 2021.
10. This Court is of the view, that the application of
the defendant/revisionist, itself will not be tenable, because it
cannot be brought within the ambit of proviso to Order 6
Rule 17 of the C.P.C., in view of the swearing clause of the
affidavit and the nature of amendment application itself,
coupled with the fact that since the document referred
thereto, in the Amendment Application happens to be of a
period, much prior to the institution of the Suit in 2015, the
knowledge, which is a artificial exception which has been
carved out by the defendant is a very bleak and feeble stand
taken to defend in the application under Order 6 Rule 17 of
the CPC.
11. In a Revision under Section 115 of the CPC, the
factum of sale deed of 28th May, 1956, has been sought to be
brought on record by way of supplementary affidavit. Filing
of the document by way of supplementary affidavit is not a
mode prescribed under the CPC, and since the revision is
nothing but an off-suit of the civil proceedings under the
proviso to the CPC, the supplementary affidavit cannot be
taken into consideration.
12. Hence, for the aforesaid reasons, the Civil
Revision lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
27.06.2022
Shiv
