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Babu Singh and anr. Vs. Disa Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 369/82
Judge
Reported in1983WLN(UC)378
AppellantBabu Singh and anr.
RespondentDisa Singh
DispositionPetition Allowed
Cases Referred and Banta Singh v. Harbhajan Kaur
Excerpt:
.....code - order 6, rule 17--amendment of plaint--amendment sought to give correct description of kilas of land in dispute--no change in subject matter or cause of action--no valuable right accrued to defendant--amendment sought before beginning of evidence--held, amendment should not be refused and delay can be compensated by costs.;when the land in dispute remains the same and only its description is sought to be corrected neither the subject matter of the suit is changed nor the cause of action. the nature of the suit also remains the same and in this view of the matter, the amendment should not have been refused merely on the ground that it was belated. so far as the delay in making the application is concerned, it does not appear that on account of this delay, any valuable right..........of the said kilas no. 13 to 17 and 18 in square no. 34 of 17 lnp but he was only khatedar of 51/4 bighas in kilas no. 14 (measuring 1/4 bighas), 15 to 17 (measuring 3 bighas) and 24 and 25 (measuring 2 bighas; of square no. 34. in chak no. 17 lnp. he further alleged that the land described by the plaintiffs in the plaint was not recorded in the revenue records in the defendant's khatedari as alleged by the plaintiffs but it was recorded in the joint khatedari of the defendant's father and other persons. on a partition of the joint khatedari land, the defendant got kilas no. 14,15 to 27, 24 and 25 as stated above. kilas no. 13, 18, 23 measuring 3 bighas and kila no 22 measuring roughly 3/4 bighas had fallen to the share of boota singh from whom the plaintiffs had already purchased the.....
Judgment:

K.S. Lodha, J

1. This is a plaintiffs' revision against the order of the learned Addl. District Judge, Sriganganagar, dated 8 10-82, by which he rejected the plaintiffs' application for amendment of plaint.

2. The plaintiffs had filed a suit for specific performance of an agreement dated 22-2-79 against the defendent Disa Singh alleging that the defendant, who was the khatedar of Kilas No. 13 to 17 msasuring 5 Bighas and 18 measuring 1/2 Bigha total 5 /2 Bighas in Square NO. 34 in Chak No. 17 LNP had agreed by a document dated 22-2-/9 to sell this land @ Rs. 7,000/- per bigha and had received a sum of Rs. 72,00a, - on that date. It was also asserted that the possession of the said land had already been handed over to the plaintiffs on the same day i.e. 22-2-79. The other terms of the agreement are not material for our present purposes. The case of the petitioners-plaintiffs further was that they had already constructed some kothas of Kilas No. 13 and 18 and are residing there. The defendant in his written statement contested the plaintiffs' claim. His case was that he was not the Khatedar of the said Kilas No. 13 to 17 and 18 in Square No. 34 of 17 LNP but he was only khatedar of 51/4 Bighas in Kilas No. 14 (measuring 1/4 Bighas), 15 to 17 (measuring 3 Bighas) and 24 and 25 (measuring 2 Bighas; of Square No. 34. in Chak No. 17 LNP. He further alleged that the land described by the plaintiffs in the plaint was not recorded in the revenue records in the defendant's Khatedari as alleged by the plaintiffs but it was recorded in the joint khatedari of the defendant's father and other persons. On a partition of the joint khatedari land, the defendant got Kilas No. 14,15 to 27, 24 and 25 as stated above. Kilas No. 13, 18, 23 measuring 3 Bighas and Kila No 22 measuring roughly 3/4 Bighas had fallen to the share of Boota Singh from whom the plaintiffs had already purchased the same by a sale deed in 1978 denied having entered into the alleged agreement with the plaintiffs and termed it as a forgery. He also raised various other pleas with which we are not concerned at present. This written statement was filed on 12-11-80. The issues in the casa were framed on 28-2 81. The case was then fixed for the plaintiffs' evidence However, before leading their evidence, the plaintiffs made an application on 14-5 81 praying for permission to amend the plaint. It was mentioned in the application that the defendant had told the plaintiffs that he was the khatedar of Kilas No. 13 to 17 measuring 5 Bighas and 18 measuring 1/2 Bigha in Square No. 34 in Chak No. 17 LNP and on that assertion, agreed to sell the same to the plaintiffs by the agreement dated 22-2-79. The plaintiffs did not know the exact number of the Kilas as they were illeterate. When the defendant filed his written statement, it came to the notice of the plaintiffs through that written statement that in fact the Kilas Numbers which had been agreed to be sold to the plaintiffs and which are of the khatedari of the defendant, were numbers 14, 15 to 17 and 24 and 25 measuring 5-1/4 Bighas and that the defendant had no other land in that Square. It, therefore, appeared that the defendant wrongly got the number of the Kilas mentioned in the agreement and on that account in the plaint also the numbers of the Kilas mentioned were wrong Therefor, the plaintiffs wanted to amend the plaint and to substitute the correct numbers of in place of the wrong number. The defendant objected to this application and after hearing the parties, the learned Addl. District Judge rejected the application by his order dated 8-10-82. The learned Addl. District Judge was of the view that the application for amendment was belated, that the plaintiffs could not be permitted to go beyond the agreement, which was the basis of the suit, that the plaintiffs wanted to make out a new case by which the defendant would be prejudiced and that according to the defendant, the plaintiffs had already purchased Kilas No. 13 and 18 from Boota Singh and, therefore, the amendment sought could not be allowed. He was also of the opinion that this amendment was not necessary for the decision of the real dispute between the parties. Aggrieved of this, the plaintiffs have come up in revision.

3. I have heard the learned Counsel for the parties. The record of this case had been sent for and is reported to have been received in the office but has not been made available at the time of the hearing of the revision and is said to have been misplaced. However, the learned Counsel of the parties have made the copies of the plaint, written statement and the application for amendment etc. available to me for my perusal and on that basis, the revision has been heard and can be disposed of.

4. It is urged by the learned counsel for the petitioners that the proposed amendment is only with a view to corrct the particulars of the land in dispute. No cause of action or the relief sought in the suit is changed; even the nature of the suit would not change, the subject matter of the suit will also remain the same, only the description, that is the particulars of the land have to be corrected and in this view of the matter, the learned Addl District Judge should have allowed the amendment. He has acted illegally and with material irregularity in rejecting the application. On the other hand, the learned Counsel for the non petitioner has supported the order of the learned Addl District Judge and has contended that the plaintiffs want to change the very subject matter of the suit and naturally by this amendment, a new case is sought to be put forward. The plaintiffs cannot thus be allowed to change the subject matter of the suit and thereby change the cause of action. He also contended that a valuable right has accrued to the defendant by the lape of time and, therefore, also the amendment cannot be allowed. It was also contended that the plaintiffs have wrongly pleaded that the defendant is the recorded khatedar of the land mentioned in the plaint as in its original stage when as a matter of fact this land does not stand in the defendant's khatedari He went on to submit that the plaintiffs had also filed an affidavit in support of his application for temporary injunction swearing that the Kilas No. 13 to 17 and 18 of Square No 34 in Chak No. 17 LNP was the land agreed to he purchased by them from the defendant and had also filed a certificate of the panchayat to the effect that these were the Kilas, which were in possession of the plainiff and in these circumstances, they now cannot be allowed to plead by way of amendment that these were not the Kilas which they had agreed to purchase but the other Kilas now sought to be introduced were purchased by them. It was further pointed out that the plaintiffs had also mentioned the same Kilas as stated in the original plaint in the notice sent by them to the defendant as also in the application before the Sub-Registrar showing their willingness to get the sale deed registered. Learned Counsel for the non-petitioner has relied upon a number of authorities to show that an amendment which brings about a new case inconsistent with the original one or which changes the cause of action or travels beyond the subject matter of controversy in the suit, cannot be allowed. I shall refer to them presently.

5. I have given my careful consideration to the rival contentions. I am clearly of the opinion that the learned Addl. District Judge has acted illegally and with m terial irregularity in the exercise of his jurisdiction in refusing the amendment prayed for by the plaintiffs. It may at once be stated that by the proposed amendment, the plaintiffs only want to substitute the correct Kilas number of the land in dispute. They do not want to substitute one piece of land for another. In the original plaint, they have clearly stated that they had already been put in possession of the land agreed to be sold to them by the defendant. This fact has not been in any way given a go by the proposed amendment. Therefore, the identity of the land does not appear to be in dispute so far as the plaintiffs are concerned. They want to bring on record the correct Kilas number of the land which they had been given possession of under the agreement in dispute. Had he prayed for possession of the Kilas number which are now alleged to be the correct Kilas numbers perhaps the position may have been different but that is not so. Therefore, when the land in dispute remains the same and only its description is sought to be corrected niether the subject matter of the suit is changed nor the cause of action. The nature of the suit also remains the same and in this view of the matter, the amendment should not have been refused merely on the ground that it was belated So far as the delay in making the application is concerned, it does not appear that on account of this delay, any valuable right has accrued to the defendant. The plaintiffs are already in possession of the land. The application has been made before the evidence of the parties has begun. Therefore, it cannot be said to be unduly delayed and whatever inconvenience has been caused to the defendant by the little delay in making the application, it can be compensated by costs.

6. The authorities relied upon by the learned Counsel for the non petitioner, are Beni Pershad v. Narayan Glass Works AIR 1949 Ajmer 19, Subashini v. Krishna Prasad AIR 1956 Assam 79, Sadeshiv v. Trimbak AIR 1957 Madhya Bbarat 17, Bombay Corporation v. Pancham : [1965]1SCR542 , Parma Nand v. Satya Deo : AIR1973Delhi190 , Ikbal Begum v. Akhtar Ali , Jawan Mal v. Gaj Singhji AIR 1974 Raj. 184 and Banta Singh v. Harbhajan Kaur . It may at once be said that the principles laid down by these authorities, which I have already referred to above are beyond dispute but as indicated by me in the earlier part of this order, the amendment sought by the plaintiffs in this case does not in any way bring about a new case nor it changes the cause of action or the nature of the suit nor any substantial right has accrued to the defendant by the late filing of the applications and, therefore, none of these authorities are of any help in the present case.

7. I may refer to some of these authorities in a little detail as much emphasis has been laid by the learned Counsel for the non petitioner on them. In Bombay Corporation's case (supra) a new case was sought to be brought forward by way of amendment. Case of fraud which was not alleged in the original pleadings, was sought to be introduced by amendment and, therefore, the Court refused the amendment. In Ikbal Begum's case (supra), in a suit in which the plaintiff had alleged that the defendant had sold to him 144 Bighas 19 Biswas of land but later it was found that the land was less by 21 Bighas 7 Biswas, pleaded that the plaintiff had purchased the land with full knowledge of what he was buying and that there was no deficiency in the area. Later she wanted to amend the written statement by pleading that the entire transaction was based on misrepresentation and, was bogus and without consideration. It was, in these circumstances that the court refused the amendment holding the defendant could not be allowed to put up a new case altogether inconsistent with the original pleadings. In Banta Singh's case (supra), in a suit for pre-emption, the defendant had pleaded that the suit was bad for asking for partial pre-emption. Despite this pleading, the plaintiff did not amend his suit and proceeded on till the suit was dismissed by the trial court. Before the first appellate court, an amendment was sought so as to mention six Kothas instead of five. This application was allowed by the first appellate court. When the matter came before the Full Bench of the Punjab and Haryana High Court, their Lordships found that in the circumstances, the first appellate court was wrong in allowing the amendment. When the plaintiff had persisted in continuing the suit despite the objection of the defendant about partial pre emption. In Beni Pershad's case (supra), a subsequent change in the pleadings contrary to the allegations in the plaint itself was sought by way of amendment and the Court found that the amendment in the circumstances of that case, was malafide, therefore, it could not be allowed. It may be mentioned that the dispute in that case was about jurisdiction. The plaintiff had produced a document of contract on a letter head of a firm different from the one of the defendant. On the basis of the terms contained on the back of that form, depended the question of jurisdiction. The plaintiff wanted to plead contrary to those conditions by way of amendment in order to show that the trial court had jurisdiction.

8. Therefore, all these cases are clearly distinguishable.

9. It was also contended by the learned counsel for the non petitioner that according to the original plaint, the land in dispute was 5 1/2 Bighas but now by the proposed amendment, the land in dispute would remain only 3 1/4 Bighas and thus there would be change in the subject matter of the suit. This change in the quantity of the land is hardly material and on that account alone, the amendment cannot be refused. It was also pointed out by the learned Counsel that although amendment has been sought in the body of the plaint, no amendment has been sought in the heading of the plaint wherein the Kilas number would still remain the same as stated in the original plaint. In my opinion, the heading of the plaint cannot be said to be more important than the body itself and in any case if the amendment in the body is allowed, a consequential amendment in the heading can always be prayed for and allowed.

10. As already stated above, it does appear that the application is a little belated in as much the written statement had been filed on 12-11-80 and issues had been framed on 28-2-81, the application for amendment was filed on 14-5 81, naturally the defendant has been put to some inconvenience and is entitled to be compensated.

11. I, therefore, allow this revision, set aside the order of the learned Addl. District Judge, Sriganganagar dated 8-1C-82 and allow the plaintiffs to amend the plaint as prayed by their application dated 14-5-81 subject to payment of Rs. 100/- as costs to the defendant.

12. Before parting with this matter, it may be made clear that the learned Counsel for the non-petitioner had been the under an apprehension that the amendment if allowed would saddle the defendant with liability in respect the land now described. The mere amendment does not settle the dispute between the parties. It will be a matter of proof for the plaintiffs to establish the case they have put forth. I have, therefore, refrained from referring to the Revenue record, panchayat certificate or the plaintiffs affidavit to which reference has been made by the learned Counsel for the non petitioner.

13. The parties are directed to appear before the learned Addl. District Judge, Sriganganagar on 21-10-83 and the plaintiffs shall file the amended plaint by that date.


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