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Gulwant Kaur Vs. Mohinder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1309 of 1971
Judge
Reported inAIR1972P& H260
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantGulwant Kaur
RespondentMohinder Singh and ors.
Cases ReferredIn Chunnialal v. Deoram
Excerpt:
.....india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the present case the defence under the original plea as well as under the new plea sought to be in introduced by amendment is that the petitioner is the owner of the land and is in possession of the same since april, 1956, to the exclusion of her husband. mangat submits that a mixed question of law and fact having been allowed to be raised by amendment of the written statement, a new issue will have to be framed by the trial court..........fact whether her such plea is at all likely to succeed or not but only with the fact that the new plea sought to be added is not at all inconsistent with the original plea, but is merely sought to be taken up in the alternative. considerations for allowing an amendment of plaint in a pre-emption suit are entirely different.4. mr. mangat then referred to the judgment of a full bench of the lahore high court in karam dad v. mt. mohd. bibi, air 1942 lah 1(fb), wherein the plaintiffs' case throughout had been that the property in dispute in that litigation was non-ancestral, but they sought to amend the plaint at the appellate stage so as to substitute the word 'ancestral' in place of the word 'non-ancestral'. the lahore high court held that the amendment could not be allowed at a late.....
Judgment:
ORDER

1. In a suit for possession of the disputed land filed by Mohinder Singh and Gurmel Singh respondents 1 and 2 (hereinafter called the plaintiffs) on the basis of a registered sale-deed executed in their favour on June 18, 1968, by the husband of the defendant-petitioner, the defence of the petitioner was that the disputed property had been gifted to her on April 13, 1956, that the gift was oral, was accompanied by possession and that the petitioner had been in continuous possession of the land through her son Madan Jit Singh (respondent No. 3 before me) since April, 1956. After the conclusion of the evidence led by the plaintiffs in the affirmative and of the evidence led by the defendant-petitioner and before the recording of the plaintiffs' evidence in rebuttal, an application was made by the petitioner in the trial Court under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend her written statement so as to add an alternative defence to the claim of the plaintiffs about her being not liable to deliver possession to the plaintiffs on the ground that even if she was not able to prove the oral gift, she had become an absolute owner of the property by adverse possession as she had been in continuous possession of the property since April, 1956. By his order, dated November 10, 1971, the learned Subordinate Judge, Sangrur, dismissed the application of the petitioner by holding that if the amendment was allowed, it would change the nature of the defence and that a new ground of defence could not be permitted to be added by amending the written statement. He held that the new defence sought to be added would be entirely inconsistent with and contradictory to the original plea taken by the petitioner in her defence and would also result in setting up a new case for her. The application was disallowed with the observation that it had been given for delaying the decision of the suit which had been pending for more than three years.

2. Mr. S. P. Goyal, the learned counsel for the petitioner, has referred me to the judgment of my Lord, the Chief Justice, in Raghvir Prasad v. Chet Ram, 1971 Cur LT 612 (Punj). In that case it has been held that under O. 6, R. 17 of the Code of plaintiff may add a new cause of action and the defendant may add a new defence. It was observed that even a new case may be allowed to be introduced, and that there is no injustice if the other side can be compensated for it by costs. The learned Chief Justice also observed that the mere fact that the cause of action has been changed is no ground per se for disallowing the amendment. In that case the question related to the amendment of the plaint. The suit had been filed for possession of a house by Raghvir Prasad and his sister Tara Wati on the basis of inheritance. Subsequently, they had applied for leave to amend the plaint so as to claim the same property on the basis of a will. The trial Court refused the amendment. While allowing the revision petition against that order, the High Court held that there was no reason why the plaintiffs in that case should be prevented from having the cause of action sought to be added by the amendment adjudicated upon. The judgment of the learned Chief Justice in the case of Raghvir Prasad (supra) no doubt supports the petitioner's claim for amendment for her written statement.

3. Mr. T. S. Mangat has on the other hand pressed into service the judgment of my Lord, the Chief Justice in Gurmukh Singh v. Dalip Singh, 73 Pun LR 830=(AIR 1971 Punj 418) on which reliance has also been placed by the trial Court for passing the order under revision. In that case the trial Court had allowed an amendment of the plaint in a suit for pre-emption so as to permit the plaintiff therein to claim a superior right of pre-emption on the ground of his being a co-sharer, after the expiry of the period of limitation for filing the suit when the only ground on which the right of pre-emption had originally been claimed in his plaint was that the pre-emptor was the brother's son of the vendor. Setting aside that order in revision, it was held by the High Court that the amendment allowed introduced into the plaint a ground which did not exist therein before and which had got absolutely no connection with the grounds taken earlier. In those circumstances it was held that the trial Court did not exercise its discretion under Order 6, Rule 17 of the Code of Civil Procedure in a judicial manner and had transgressed its jurisdiction in allowing a new ground for claiming a superior right of pre-emption being taken at the time when a suit based on that ground would have been barred by time. The considerations which weighed with the learned Chief Justice in Gurmukh Singh's case are not at all present in the case before me. The taking up of the new defence by the petitioner in the alternative by amending her written statement is not barred by time. The defence is not based on any new set of facts. In fact it is intimately connected with the defence already set out. The date from which the petitioner claims to be in possession is the same. She did not claim to have been in permissive possession under her husband at any stage since April, 1956. In each of the two pleas in question, she claims to have been in possession as owner which would in either eventuality be adverse to the interest of her husband. All that the seeks to plead is that if she fails to prove the oral gift, but succeeds in proving that she had been in possession of the property in dispute since April 13, 1956 in the purported exercise of her right as owner of that property, her such possession had itself ripened into title by adverse possession. I am not concerned with the fact whether her such plea is at all likely to succeed or not but only with the fact that the new plea sought to be added is not at all inconsistent with the original plea, but is merely sought to be taken up in the alternative. Considerations for allowing an amendment of plaint in a pre-emption suit are entirely different.

4. Mr. Mangat then referred to the judgment of a Full Bench of the Lahore High Court in Karam Dad v. Mt. Mohd. Bibi, AIR 1942 Lah 1(FB), wherein the plaintiffs' case throughout had been that the property in dispute in that litigation was non-ancestral, but they sought to amend the plaint at the appellate stage so as to substitute the word 'ancestral' in place of the word 'non-ancestral'. The Lahore High Court held that the amendment could not be allowed at a late stage in the appeal as it would necessitate a remand for further inquiry as to the ancestral nature of the property and the parties had led evidence on the issue already framed on the question whether the property was ancestral or not. The law laid down in that case does not appear to be relevant for deciding the application of the petitioner in the instant case.

5. Learned counsel for the plaintiffs has also referred to the judgment of a learned Single Judge of the Madras High Court in the State of Madras v. Muniyappa Chetty, AIR 1956 Mad 679. The plaintiff in that case had claimed ownership of certain property on the ground that he had become an absolute owner thereof by reason of adverse possession for over sixty years, against the State Government. He subsequently wanted to amend the plaint so as to claim that he and his predecessors-in-interest had been in possession of the property on the basis of an ancient grant which had been lost in antiquity. It was held that such an amendment could not be allowed as the new case sought to be set out as entirely different which would change the character of the case as was originally put forward by the plaintiff. In the present case, the possession is claimed under both the pleas with effect from the same date. The new plea sought to be raised is not destructive of the original plea and both the pleas could have been taken up in the suit originally in the alternative.

6. In A. K. Gupta and Sons Ltd. v. Damodar Valley Corpn., AIR 1967 SC 96, cited by Mr. Mangat the amendment sought to introduce a claim based on the same cause of action, namely the same contract had been refused by the High Court at the appellate stage. The Supreme Court allowed an appeal against the judgment of the High Court refusing to allow the amendment on the ground that the plea sought to be added by amendment would amount merely to a different or additional approach to the same facts, and that such an amendment could be allowed even after the expiry of the statutory period of limitation. The judgment of the Supreme Court in the case of A. K. Gupta and Sons Ltd. (supra), appears to be more in favour of the petitioner than the contesting respondents.

7. In Chunnialal v. Deoram, AIR 1948 Nag 119, it was observed by a learned Single Judge of the Nagpur High Court that the Court will not allow an amendment which involves a complete change of front in the defence. It was held that a plaint cannot be allowed to be amended so as to introduce a new cause of action which would change the nature of the suit so also the defence cannot be allowed to be altered to as to introduce a different set of circumstances inconsistent with the circumstances pleaded to begin with. In that case the original justification given by the defendants for being in possession of the property in dispute was that their transferors were mere licensees of the abadi, but the defendants by their amendment wanted to raise for the first time in appeal a new question of controversy, namely, that the transferors were proprietors, and therefore, had transferable interest in the site. On these facts it was held that the plea that the transferors were owners was inconsistent with the plea that they were licensees and the amendment sought for being in the nature of complete change of the front in defence ought not to be allowed. In the present case the defence under the original plea as well as under the new plea sought to be in introduced by amendment is that the petitioner is the owner of the land and is in possession of the same since April, 1956, to the exclusion of her husband. It cannot, therefore, be said that there is any change of the front in defence on the part of the petitioner in the present case. Moreover, somewhat different considerations apply to the discretion to be exercised by an appellate Court for allowing an amendment of the pleadings than the considerations which must weigh with a trial Court for disposing of such an application before even the recording of the entire evidence sought to be led by the parties is concluded.

8. For the foregoing reasons, I would hold that the trial Court illegally refused to exercise its jurisdiction under Order 6, Rule 17 of the Code of Civil Procedure in having refused to allow the petitioner to amend her written statement in the manner indicated in her application given for that purpose.

9. Mr. Mangat lastly submitted that allowing the proposed amendment at this late stage would unduly delay the disposal of the suit which is already quite old. Inordinate delay in making an application for amendment is no doubt a valid consideration for deciding the application on merits. In the present case, however, the petitioner has stated in paragraph 4 of her grounds for revision that 'all the evidence on the plea sought to be introduced by way of amendment has already been led by the petitioner and she does not claim to lead any further evidence. Mr. Mangat submits that a mixed question of law and fact having been allowed to be raised by amendment of the written statement, a new issue will have to be framed by the trial Court (possibly after permitting the plaintiffs to file a replication in reply to the amended written statement), and that the petitioner may then like to lead evidence on the new issue on which the burden has to be on the defendant. Mr. S. P. Goyal states that he is giving a categorical and irrevocable undertaking to the Court under explicit instructions from his client, that she would not lead any evidence on the issue which might be framed by the trial Court on account of the amendment claimed by her on the remaining issues may also be read by the Court in support of the new plea and on the issue based thereon. In this situation, the question of delay also does not arise. The evidence already led by the defendant-petitioner shall be read as her evidence on the new plea. The plaintiffs have yet to lead evidence in rebuttal. They would be at liberty to adduce any additional evidence to rebut the evidence already led by the defendant which may be relevant to the new plea in addition to the evidence in rebuttal which they have otherwise to lead.

10. This revision petition is accordingly allowed and the application of the petitioner for amendment of her written statement is granted in terms of what is already stated above conditional on her paying a sum of Rs.100/- as costs to the opposite party. The costs of the revision petition shall be costs in the suit. The parties are directed to appear before the trial Court on February 21, 1972.

11. Petition allowed.


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