RSA No.3635 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3635 of 2006 Date of decision: 8.10.2010 Karnail Kaur through LR Ramaljit Kaur ......Appellant(s) Versus Harminder Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.S. Salar, Advocate for the appellant. Mr. Rajinder Singh, Advocate for respondent No.2. Rakesh Kumar Garg, J. Brief facts necessary for the disposal of this appeal are that one Karnail Kaur widow of Baldev Singh filed the present suit for declaration that she was owner in possession of 32/694 share of land as detailed in the heading of the suit alleging therein that on 22.6.1987, she purchased the aforesaid land from Gurbachan Singh son of Kartar Singh, who was owner in possession of land to the extent of 1/8th share of the total land. It may also be pointed out that the appeal before this Court was filed through one Shamsher Singh son of Bakhtawar Singh as General Power of attorney of appellant-Karnail Kaur. As per averments, on 11.3.1987, he sold 64/1096 share out of the total land to Baldev Singh son of Gurbachan Singh. On 19.3.1987 Gurbachan Singh further sold 22 kanals 14 marlas of land. Gurbachan Singh sold 32 kanals to the plaintiffs including Khasra Nos.72//18 (2-7), 19 (3-1), 21 (5-7), 22 (8-0), 23 (8-0) 24/1 (4-13) whereas these khasra numbers had already been sold by Harminder Kaur (who was also having RSA No.3635 of 2006 2 1/8th share in the total land) to Jaswinder Singh on 10.6.1986 to the extent of 48/66th share. The possession of 18 kanals of land was delivered to the plaintiff-appellant from khasra numbers mentioned in the said sale deed, however, remaining 14 kanals of land was given from Khasra No.76//5 (7- 16), 17//6(7-5). However, the said area sold to the plaintiff was within the share of Gurbachan Singh. It was further averred that the revenue Authorities rejected the mutation in her favour on the ground that certain khasra numbers have been mutated in the name of Jaswinder Singh allegedly sold by Harminder Kaur. Therefore, any partition of land at her back was not binding upon her and she was entitled to the land which she purchased from Gurbachan Singh. In the written statement, the defendants raised preliminary objections that the suit was not maintainable and pointed out that Gurbachan Singh was owner of the land measuring 32 kanals and sold the same vide sale deed dated 22.6.1987. On the pleadings of the parties, the following issues were framed by the trial Court: “(i) Whether the plaintiff is entitled for declaration? OPD (ii) If issue no. 1 is proved, whether the plaintiff is entitled to possession of suit property to the extent of her share/OPP (iii) Whether the suit is not maintainable/OPD (iv) Relief.” During the pendency of the suit, Karnail Kaur filed an application for withdrawal of the suit with permission to file a fresh one. The aforesaid application was declined on 24.3.2001. The order dated 24.3.2001 as reproduced in the grounds of appeal reads as follows: RSA No.3635 of 2006 3 “This order of mine shall dispose of the application filed by plaintiff under order 23 rule 1 CPC for withdrawing this case with permission to file again on the ground that plaintiff has filed this suit on 19.2.1999. At that time, she was having no knowledge that suit land has already been partitioned and she has filed suit on the notion that suit land is joint land. After filing of written statement by defendant she came to know about partition of suit land by AC 1st Grade, Mansa vide order dated 8.9.98. It is different matter that partition is legal or illegal. Now there is formal defect in the suit due to which suit would be failed. Now applicant/plaintiff wanted to withdraw the suit with permission to file again on the same cause of action after making changes in it and prayed for allowing this application. Upon notice this application is contested by the respondent/defendant who filed reply raising the preliminary objections that plaintiff cannot be allowed to withdraw the suit with permission to file again on the same cause of action as she was having knowledge of partition. The suit is filed by concealing the true facts and for harassing the defendants. On merits she has denied all the grounds taken in the application and made prayer for dismissal of this application. Heard, judicial file perused. The grounds taken by applicant/plaintiff is that new fact of partition of the suit land has come to her notice after filing of this suit. In my view, not taking this fact is not a legal lacunae. This is RSA No.3635 of 2006 4 no ground for sure failure of case. There is no such case by the application/plaintiff that these facts cannot be brought in this case. The applicant is free to bring these facts on record as per provisions of law but she cannot be allowed to withdraw this suit with permission to file again on the same cause of action. So, in this view, I dismiss this application. My observation on this application should not be taken as expression of mind on any future application, which would be dealt with as per provisions of law. Now to come up for filing of replication and consideration of issues on 11.4.2001. Pronounced. Dt. 24.3.2001 Sd/- Civil Judge (Junior Divn.) Mansa” Thereafter, plaintiff-Karnail Kaur filed an application for amendment of the suit on 11.4.2001 which was also rejected vide order dated 8.1.2005. The said order reads as follows: “1. This order will dispose of an application under Order 6 Rule 17 CPC moved by the plaintiff for amendment of the plaint. 2. Sh. B.N. Goyal, learned counsel for the applicant has submitted that during the filing of the written statement by the defendants, he came to know about the partition proceedings and the order passed by the Assistant Collector 1st Grade, Mansa, The plaintiff was never impleaded as a party to the partition proceedings. So, she wants to bring on record the certain co-sharers such as Jaswinder Singh, Bhura Singh, Ajit Inder Singh, RSA No.3635 of 2006 5 Jatinder Pal Singh, Bhupinder Singh, Mohan Singh and Jasvir Singh as co-sharers. She also wants to challenge the partition order dated 8.9.1998 passed by the Assistant Collector 1st Grade, Mansa. So, she may be allowed to amend the plaint. 3. On the other side, Sh. Kuldip Singh Chahal, learned counsel for the contesting defendants has submitted that the application is not maintainable. The plaintiff was fully aware of the partition proceedings and passed the orders, in the said proceedings. On early occasion, the plaintiff had denied the partition proceedings. She had moved an application under order 23 rule 1 CPC for grant of permission to withdraw the suit with permission to file afresh. The said application was dismissed. The plaintiff only wants to prolong the trial of this case. He has prayed for dismissal of the application. 4. On critical examination of the contentions raised by the learned counsel for the parties, I have found that in the present suit, the plaintiff has only sought the declaration that she is owner in possession of land measuring 694 kanals 16 marlas. She has also questioned the validity of the sale deed dated 22.6.1987 only to the extent that Gurbachan Singh was not owner of the full share of these khasra numbers, as he had already sold some piece of land to Jasminder Singh son of Baldev Singh vide sale deed dated 10.6.1986. The plaint raised by the plaintiff was already discussed by me Ld. Predecessor in his order dated 24.3.2001. The RSA No.3635 of 2006 6 plaintiff had sought permission to withdraw the present suit with permission to file afresh suit in lieu of the present one because she wanted to challenge the partition order dated 8.9.1998. My predecessor had already declined his prior vide order dated 24.3.2001. The partition order might have been passed by the Assistant Collector First Grade, Mansa dated 8.9.1998 with respect to the said land. But the said order is not going to affect the trial of this case in any way. Here the plaintiff has to prove her right of ownership and possession qua the suit property. So, if she is not allowed to amend the plaint and permitted to question the validity of order dated 8.9.1998, then she is not going to suffer any loss. Nor the order dated 8.9.1998, passed by the Assistant Collector 1st Grade, Mansa, is going to affect the decision of this case. The plaintiff has not challenged the order dated 24.3.2001 passed by my predecessor. So, in case the proposed amendment is allowed that would change subject matter of the present suit as well as up set the order passed by my predecessor on 24.3.2001. Moreover, the plaintiff is at liberty to file a separate suit for declaration if she wants to challenge the partition proceedings and the order passed by the Assistant Collector 1st Grade Mansa. The judgment passed in this case cannot operate as resjudicata to the institution of such suit, as the subject matter in controversy in the present as well as in the subsequent suit would be entirely different from each RSA No.3635 of 2006 7 other. The grant of permission to amend the plaint at this stage would also result into the miscarriage of justice qua the defendants. Therefore, I do not see any merit in this application and the same is hereby dismissed. Announced in open Court. Dt. 8.1.2005 Civil Judge (Junior Division) Mansa” Karnail Kaur also filed CR No.1127 of 2005 before this Court on 23.2.2005 challenging the aforesaid order dated 8.1.2005. In the meantime, evidence of the plaintiff was closed by order dated 21.4.2005. Since the plaintiff had failed to prove her case, the suit was dismissed with costs. Aggrieved from the judgment and decree of the trial Court dated 21.4.2005, the plaintiff filed an appeal before the Lower Appellate Court contending that she was not given an adequate opportunity to prove her case and the trial Court had erred at law in shutting down her evidence. It was further contended that her request for withdrawal of the suit with permission to file fresh suit was wrongly declined vide order dated 24.3.2001 and even the amendment in the plaint was declined vide order dated 8.1.2005 illegally and therefore, the judgment and decree dated 21.4.2005 passed by the trial Court was liable to be set aside. However, while dismissing the appeal of the plaintiff-Karnail Kaur, vide impugned judgment and decree dated 19.10.2005, the Lower Appellate Court noticed that the suit was filed by plaintiff-Karnail Kaur on 22.2.1999 and the issues were framed and after framing the issues, the plaintiff was affored five opportunities with warnings of last opportunity, but even then the plaintiff failed to take any steps to produce her evidence. Even process fee, diet money and list of witnesses was not filed. Neither RSA No.3635 of 2006 8 assistance of the Court was sought for summoning any witness and thus, there was no illegality in passing the order of closing of evidence by the trial Court. The Lower Appellate Court also observed that vide order dated 24.3.2001 declining the permission to withdraw the suit with liberty to file fresh suit was not challenged by the plaintiff-appellant and even the prayer for amendment was also declined and therefore, no grievance could be raised on this account and thus, finding no merit, appeal of the plaintiff was dismissed by the Lower Appellate Court. Still not satisfied, plaintiff-Karnail Kaur filed the instant appeal before this Court. It is important to point out at this stage that initially this appeal was filed by plaintiff-Karnail Kaur on 27.1.2006 and the same was returned by the Registry by raising certain objections on 1.2.2006. Thereafter, this appeal was refiled on 20.9.2006 along with CM No.9130-C of 2006 seeking condonation of 292 days' delay in refiling the appeal which was supported by an affidavit of Shamsher Singh, attorney of the appellant-Karnail Kaur. The aforesaid delay in refiling the appeal was condoned vide order dated 30.1.2007. On that date, this Court also allowed CM No.9131-C of 2006 to bring on record the legal representatives of Baldev Singh as respondents No.7 to 11 and issued notice of motion to the respondents and directed the parties to maintain status quo regarding possession and alienation. Thereafter, the appeal remained pending before this Court. On 10.7.2007, counsel for the respondent informed the Court that the appellant was dead. Counsel appearing on behalf of the appellant stated that he would require time to verify the factum of death of appellant. Thereafter, the appellant moved an application i.e. CM No.10682-C of 2007 before this Court for transposing respondent No.11 i.e. Ramaljit Kaur daughter of Baldev Kaur RSA No.3635 of 2006 9 as legal representative of the appellant claiming a Will in her favour. The said application was allowed subject to all just exceptions and thus, Ramaljit Singh-respondent No.11 was transposing as appellant. Vide this order, applicant-Ramaljit Kaur was further directed to file a fresh memo of parties within two weeks. However, no such fresh memo of parties was placed on record. It is also relevant to mention that in the aforesaid application, it was averred that Karnail Kaur had died on 8.3.2006 meaning thereby refiling of the present appeal through Shamsher Singh son of Bakhtawar Singh, the power of attorney of Karnail Kaur, on 20.9.2006, was misconceived and an attempt to mislead this Court. In fact the present appeal could not have been refiled on behalf of Karnail Kaur without seeking leave of this Court by her LRs in whom right to sue survived on that date and there was no properly constituted appeal before this Court on 30.1.2007 when Ramaljit Kaur (who is now representing the appellant) was brought on record or on 10.7.2007 when she was transposed as LR of the appellant. Not only this, it is also relevant to point out that civil revision filed by Karnail Kaur against order dated 8.1.2005 for challenging the rejection of her prayer for amendment in the plaint was dismissed on 17.7.2006 having become infructuous and Karnail Kaur was being represented in the aforesaid revision petition through the same counsel. The aforesaid order reads as follows: “In the High Court of Punjab and Haryana at Chandigarh C.R.No. 1127 of 2005 Date of Decision:17.7.2006 Karnail Kaur -----Petitioner Versus Harminder Kaur -----Respondent Coram: Hon'ble Mr. Justice Vinod K. Sharma RSA No.3635 of 2006 10 Present:- Mr. S.S.Salar, Advocate, for the petitioner. **** Vinod K.Sharma, J (Oral) Learned counsel for the petitioner states that the suit stands dismissed and thereafter the appeal filed against the said judgment and decree has also been dismissed. Therefore, the revision petition has become infructuous. However, the petitioner seeks liberty to challenge the order in the appropriate proceedings, if any, taken by him. Dismissed as having become infructuous with liberty as prayed for. July17, 2006 (Vinod K. Sharma) Judge” How the counsel or the attorney of Karnial Kaur could have sought any liberty to raise any such objection after the death of Karnail Kaur on 8.3.2006 without brining on record any of her LRs is not explained. It is interesting to note that in spite of the fact that the present appeal was filed by the same learned counsel as back as on 27.1.2006 and in the grounds of appeal, it was mentioned that he has filed the civil revision challenging the order dated 8.1.2005 of the trial Court, while appearing in the Civil Revision No.1127 of 2005 on 17.7.2006 sought liberty to challenge the order dated 8.1.2005 of the trial Court in appropriate proceedings, if any, taken by appellant-Karnail Kaur. Thus, a clear attempt was made to mislead the Court by concealing the factum of filing the present appeal and death of Karnail Kaur. Now adverting to the merits of the present appeal, it may be RSA No.3635 of 2006 11 noticed that despite many opportunities, plaintiff-Karnail Kaur failed to lead any evidence in support of her case and thus, by order dated 21.4.2005 her evidence was closed and the suit was dismissed. While dismissing the appeal, the Lower Appellate Court also noticed all these facts and found that there was no infirmity in the order closing the evidence of the appellant by order dated 21.4.2005. Before this Court also, the learned counsel for the appellant could not challenge the order dated 21.4.2005 passed by the trial Court closing her evidence and which resulted into dismissal of her suit on any possible ground. However, in spite of the fact that order dated 24.3.2001 rejecting the prayer of the plaintiff for withdrawal of the suit with permission to file fresh was declined and the aforesaid order had become final, learned counsel tried to submit that the permission to withdraw the suit with liberty to file fresh was declined wrongly. Not only this, instead of raising the grievance against the rejection of the prayer of the plaintiff for amendment of the suit in Civil Suit No.1127 of 2005, the same was got withdrawn by the learned counsel seeking liberty to challenge the said order in appropriate proceedings and on the basis of this order, learned counsel for the appellant has tried to submit before this Court that since order dated 8.1.2005 rejecting his prayer to amend the suit was wrong, the impugned judgment and decrees of the Courts below are liable to be set aside and he has a right on the basis of this ground as he was given liberty by this Court in Civil Revision No.1127 of 2005. It may further to point out at this stage that in the grounds of appeal no basis has been made by the appellant for raising such a ground in the present appeal except that in the grounds of appeal it has been mentioned that while declining his prayer for filing a fresh suit with liberty, the right of the plaintiff was reserved while observing that the technical defects in the plaint can be removed by amending the same instead of withdrawing the suit RSA No.3635 of 2006 12 and thus, in view of the aforesaid, the judgment and decrees of the Courts below are liable to be set aside. However, no such right was given to the appellant by the Court and it was simply observed that he can brought all the facts on record as per law. I have also heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below and the other documents attached with this appeal. This Court is fully satisfied that there is a clear attempt on behalf of the appellant-Karnail Kaur to mislead this Court in spite of the fact that on the death of Karnail Kaur on 8.3.2006, this appeal could not have been refiled without seeking leave of the Court by her legal representatives in whom right to sue survives on that date yet the appeal was refiled on 20.9.2006 on behalf of a dead person through her attorney which has come to an end on the date of death of the appellant i.e. 8.3.2006. Not only this, even when application for transposing Ramaljit Kaur who was arrayed as respondent No.11 and later on was ordered to transpose as LR of the appellant it was to the notice of the counsel for the appellant that Karnail Kaur had died on 8.3.2006 and refiling on her behalf on 20.9.2006 through her attorney was not legal yet this fact was not brought to the notice of this Court by moving a necessary application and the factum of refiling of the appeal on behalf of a dead person was kept concealed from the knowledge of this Court. Moreover, on 17.7.2006, there was no occasion for the counsel of Karnail Kaur in CR No.1127 of 2005 to seek liberty to challenge the order in appropriate proceedings, if any, taken by her, as Karnail Kaur had died and no one was brought on record to represent her and the present appeal on behalf of Karnail Kaur had already been filed in this Court and it should have been clearly stated by the counsel that he will take all those legal objections in the said appeal. RSA No.3635 of 2006 13 Even if the appellant has been allowed to raise the objections of her prayer for amendment in the present appeal, there is nothing before this Court on the basis of which any fault can be found in the aforesaid order. The order dated 8.1.2005 was not placed on record of this appeal. It may also be seen that argument of the appellant that while declining the prayer for withdrawal of suit with liberty to file fresh on 24.3.2001, the Court had observed that defects can be removed by making an application and therefore, her amendment application is to be allowed, is also incorrect. Order dated 24.3.2001 as reproduced in the grounds of appeal does not talk of any such right of the appellant. This Court has observed that the appellant is free to bring the necessary facts on record as per law. Thus, in view of the aforesaid discussion, I find no merit in this appeal. As noticed above, there is a clear attempt to mislead this Court and the appellant has not approached this Court with clean hands and suppressed material facts with oblique motive. The present appeal, which is totally frivolous, is dismissed with costs which are assessed at Rs.10,000/-. Let the costs be deposited within one month from today with the State Legal Services Authority, Punjab. A compliance report be submitted to this Court. October 8, 2010 (RAKESH KUMAR GARG) ps JUDGE