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Bhawani Dass Vs. Kaushalya Rani - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1478 of 1980
Judge
Reported inAIR1981P& H196
ActsLimitation Act, 1963 - Sections 2
AppellantBhawani Dass
RespondentKaushalya Rani
Cases ReferredGela Ram v. Kailash Nath
Excerpt:
.....no inkling or suspicion of something missing therefrom he could well take the shelter that the mistake committed by him was bona fide and he was misled by the certified copy supplied......land fully detailed in the plaint. as his reliance he appended therewith a copy of the registered sale deed obtained by him for the office of the sub-registrar. the copy provided to him contained only one name of the vendee, being kaushalya rani, wife of radha krishan, respondent. in defence of the suit, it was averred in the written statement that the plaintiff had omitted to implead the co-vendee of the defendant-respondent, who had purchased half share of the property. on objection raised, the pre-emptor made an application to the senior sub judge, sirsa, trying the suit, seeking permission to amend the plaint and to add thereto raj rani as the second defendant in the suit. this application met with still resistance at the hands of the defendant. the trail court after considering all.....
Judgment:

M.M. Punchhi, J.

1. This revision petitioner came to be admitted to a Division Bench by my learned brother, K. S. Tiwana, J. (who is happily now with me) as he felt that a conflict of opinion apparently arising from two single bench decision of this Court in Samir Singh v. Ujagar Singh, 1976 Cur LJ 463 and Gela Ram v. Kailash Nath, (1976) 78 Punj LR 330, need be resolved This is how this Petition has been listed before us.

2. The fact giving rise thereto are in a narrow compass. The petitioner instituted a suit for possession by way of pre-emption in respect of a parcel of agricultural land fully detailed in the plaint. As his reliance he appended therewith a copy of the registered sale deed obtained by him for the Office of the Sub-Registrar. The copy provided to him contained only one name of the vendee, being Kaushalya Rani, wife of Radha Krishan, respondent. In defence of the suit, it was averred in the written statement that the plaintiff had omitted to implead the co-vendee of the defendant-respondent, who had purchased half share of the property. On objection raised, the pre-emptor made an application to the Senior Sub Judge, Sirsa, trying the suit, seeking permission to amend the plaint and to add thereto Raj Rani as the second defendant in the suit. This application met with still resistance at the hands of the defendant. The trail Court after considering all aspects of the case chose to dismiss the petition on 26th May, 1980, being of the view that on the date of the application, the suit had become batted by time and a valuable right had accrued to the defendant-vendee. Challenge in this petition has been directed against that order.

3. During the course of hearing of this petition we felt the necessity of calling for the records. On their arrival, we have perused the case file and in particular the certified copy of the registered sale-deed. It would be worth while to take note of a portion of its recitals. It is mentioned therein that the land was being sold in favour of Kaushalya Rani, wife of Radha Krishan, son of Ram Ditta Mal, resident of Panjuana in equal shares, The sale made was absolute, the possession of land at the spot in Killa numbers (details given) has been given by them to the vendees.

4. In Samir Singh v. Ujagar Singh, 1976 Car LJ 463. S. S. Sandhawalia, J. (now the chief Justice) had held as follows:--

'As has been highlighted earlier, the plaintiffs being the venders were not in possession of the original sale deed which was with the vendees. They had secured a certified copy through the Copying Agency of the said sale deed. The plaintiffs were entitled to assume the correctness of the official copy supplied to them and therefore mentioned the Khasra numbers in the plaint in accordance therewith. It cannot be said to be the duty of a plaintiff in such a situation to compare the certified copy in his possession with the original when it was filed by the vendees. It was only when the specific objection had been raised on behalf of the defendants that a Khasra Number had been wrongly mentioned that the matter came to the knowledge that the plaintiffs and it is not in dispute that thereafter they expeditiously moved the present application for amendment.

3. It is well settled that in the matter of amendment of the plaint, the primary consideration are whether the same is being sought bona fide and also whether the defendants can be adequately compensated with costs. In pre-emption matters it has also to be seen as a matter it has also to be seen as a matter of fact whether the intention of the pre-emptor was to pre-empt the whole of the sale or otherwise. In the present case it appears to be manifest that the bona fide of the plaintiff are beyond doubt. They did, and indeed, were entitled to presume the correctness of an official certified copy supplied to them. No litigant is to suffer for the default of an official agency as in the present case'.

For the view taken, reliance was placed on Sodhi Singh, v. Basant Singh (1962) 64 Punj LR 633. Teja Singh v. Bhagwan Singh, 1970 Punj LJ 615 and Bhawan Singh v. Kashmir Singh 1971 Punj LJ 222. Mr. Mehtani learned counsel for the petitioner, employed for the view more decisions of the same kind. He also contended that the principle 'Actus curiae neminem gravabit' was recognised by the Supreme Court in Jang Singh v. Brij Lal, (1963) 65 Punj LR 884 and deserved to be invoked in his favour.

5. On the other hand, the learned counsel for the respondent, relied on Gela Ram v. Kailash Nath, (1976) 78 Punj LR 330. A decision rendered by Harbans Lal J., as also Jawala Das, v. Gopal Lal, AIR 1925 Lah 343, contending that inclusion of a name of a party, after the expiry of the period of limitation, in a pre-emption suit would not be permitted by the Court by way of amendment of the plaint. In Gela Ram's case (supra) some judgment of this court of the nature relied upon in Samir Singh's case, (1976 Cur LJ 463)(supra) were taken note of and it was observed as follows:--

'It is clear from a close perusal of the judgments, referred to above, relied upon by the learned counsel on both sides that it is only in those cases where the learned Judges came to the conclusion that the was a case of misdescription of a property or parties in pre-emption cases that the amendment was allowed and the conclusion arrived at was that such a misdescription was bona fide and as a result of inadvertence. No case has been cited at the Bar where a different view may have been taken in Jawala Das's case (Supra), the facts of which are almost similar to the case in hand. No decision has been brought to my notice in which the amendment of the plaint may have been allowed so as to include the name of a party who had not been impleaded as a defendant after the expiry of limitation. In the present case the omission to include the name of Amar Ditta, one of the vendees, as a defendant, cannot eve be held to be an act, of good faith. The term 'good faith' had been defined in Section 2(h) of the Limitation Act. 1963. as under :--

'nothing shall be deemed to be done in good faith which is not done with due care and attention.' If the plaintiff-respondent, Kailash Nath had used 'due care and attention' he must have been put on enquiry as to why after mentioning the names of all the purchasers, namely, Ram Kishan and Ram Das, the word 'three' (meaning thereby three purchasers) had been mentioned and he would have easily found out the names of the three vendees from the office of the Sub-registrar or from the revenue records in the possession of the Patwari.'

6. The golden streak which permeates the case law on the subject is to the effect that the amendment sought to be allowed by a party must be on account of bona fide mistake ad as a result of inadvertence. We would refrain from resolving the suggested conflict between resolving the views expressed in Samir Singh's case (1976 Cur LJ 463)(supra) and in Gela Ram's case (1976-78 Pun LR 330)(supra) as it appears to us that there is none which arises and what just is sought is an answer to an abstract question that if the plaintiff relying on the recitals in a certified copy of the sale deed supplied by an official agency is misled, could he whatever be the mistake correct it as of right in a pre-emption suit. Here again, it would depend on the recitals in a given attested copy of the sale deed. If the documents supplied to the plaintiff carried recitals from which he could have had no inkling or suspicion of something missing therefrom he could well take the shelter that the mistake committed by him was bona fide and he was misled by the certified copy supplied. It would again depend, on a variety of other consideration whether the Court would permit the plaintiff amendment of the plaint or not. But if on the other hand the recitals in the certified copy obtained get an inkling or suggestion that something was remiss therefrom then it would be the duty of the plaintiff in his own interest to get the matter clarified. The plaintiff would not be permitted to gain from his own indolence and neglect. The plaintiff would not be permitted, in the circumstance to cash on the error committed by the Copying Agency.

7. Reverting back to the facts of the present case, we find that there were two angular expressions in the copy of the sale deed to the effect that the laid had been sold in equal shares and the possession had been given shares and the possession had been given to the vendees. These expressions, if read in a cautionary trend would have put the plaintiff to alert that there was likelihood of more than one vendee and the name of the sole vendee mentioned in the verified copy of the sale deed could be misleading. If the plaintiff became wiser by the name of one vendee from the sale deed, it is difficult to reconcile that the suspicious expressions used therein would have escaped his notice. The plaint was filed on 6th June, 1979, hardly a week before the expiry of the period, of limitation. The objection had been taken in the written statement on 8th Feb, 1980. Despite that the amendment was sought on 4th April, 1980. By the time the amendment was sought the period of limitation of the suit had expired. It is thus neither a case in which the amendment sought for was to supply omission of a detail of property comprised in the sale or co clarify a misdescription of the name of a party already sued as defendant. The details of the omitted defendant could easily be gathered, if the certified copy of the sale deed had been read with due care and attention putting the plaintiff to the run, to get it corrected from the office of the Sub-Registrar, or to verify the names of the vendees from the revenue records with regard to the possession or ownership or both over the suit land.

8. As a sequel to the aforesaid discussion, we find no merit in the petition. The order of the trail court is unassailable. Thus this petition fails and is here by dismissed. No costs.

9. Petition dismissed.


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