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SuraIn Singh Vs. Swami Dhian Santosh Anandpuri and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1277 of 1977
Judge
Reported inAIR1979P& H161
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantSuraIn Singh
RespondentSwami Dhian Santosh Anandpuri and anr.
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........against the judgment and decree of the subordinate judge first class, ajnala, by which the suit filed by respondent swami dhian santosh anandpuri for possession of the property in dispute, was decreed. the impugned order was passed on an application under order vi, rule 17, code of civil procedure, filed by the petitioner praying for the amendment of the written statement, at the appellate stage. by means of the said application the petitioner had prayed that in his written statement he may be allowed to plead that the suit was barred by limitation. the objection is based upon the fact that on the death of the original holder, i.e., swami durge puri mutation no. 360 dated august 31, 1964 was sanctioned in favour of sher puri respondent no. 2. who was also a codefendant with the.....
Judgment:
ORDER

1. This is a Revision Petition against the order of the senior subordinate Judge, Amritsar, passed during the pendency of an appeal filed by the petitioner against the judgment and decree of the Subordinate Judge First Class, Ajnala, by which the suit filed by respondent Swami Dhian Santosh Anandpuri for possession of the property in dispute, was decreed. The impugned order was passed on an application under Order VI, Rule 17, Code of Civil Procedure, filed by the petitioner praying for the amendment of the written statement, at the appellate stage. By means of the said application the petitioner had prayed that in his written statement he may be allowed to plead that the suit was barred by limitation. The objection is based upon the fact that on the death of the original holder, i.e., Swami Durge Puri Mutation No. 360 dated August 31, 1964 was sanctioned in favour of Sher Puri respondent No. 2. who was also a codefendant with the petitioner. The application which was resisted by the plaintiff-respondent was considered by the lower appellate Court and it was held that the question of adverse possession did not arise and it was for the defendants to show that they had remained in adverse possession of the property for more than twelve years.

2. The learned counsel for the petitioner has rightly contended that the lower appellate Court lost sight of the fact that Surain Singh petitioner is a tenant in the property in dispute and the question of the Defendant being in adverse possession of the property could not have arisen. It is further submitted that in such situation it was imperative for the Courts below to decide as to whether the suit, which was described to be one for possession, was actually filed within limitation or not. The learned counsel has also submitted that in case necessary amendment is allowed, it would cause no delay in the disposal of the matter as the defendants would not lead any other evidence except the production of some documents. There is no gainsaying that the prayer for amendment had been made at a belated stage, i. e., during the pendency of the appeal before the lower appellate Court, but the law is well settled that an amendment which goes to the root of the matter and which requires necessary adjudication for proper assessment of the matter, may be allowed at any stage of the proceedings and an appeal is certainly a continuation of the original proceedings. In these circumstances, the amendment as prayed for is allowed to the extent that an additional issue is framed in this case to the following effect:--

Additional Issue:-- Whether the suit is beyond limitation? (OPD).

3. The impugned order of the lower appellate Court is set aside. The case shall now go back to the lower appellate Court to consider the appeal along with the additional issue as framed above, after allowing both the parties to produce any documentary evidence in support of their contentions, subject, of course, to admissibility of these documents. No other evidence for this purpose shall be allowed to be produced.

4. The parties, through their counsel have been directed to appear before the lower appellate Court m Nov. 2, l978.

5. There shall he no order as to costs of this revision petition.

6. Revision allowed.


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