Civil Revision No.8341 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.8341 of 2010(O&M) Date of Decision: July 28, 2011 Bishan Singh and another .....Petitioners v. Roshan Kaur and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Binderjit Singh, Advocate for the petitioners. Mr.PKS Phoolka, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 8.11.2010, Annexure P6, passed by learned Civil Judge, Junior Division, Bathinda, vide which application dated 17.5.2010, Annexure P3, filed by present petitioners-plaintiffs for amendment of plaint under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as the `Code') was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that petitioners-plaintiffs filed a suit for possession of a plot, which is part of the building bearing old No.690, as allotted by Rehabilitation Department and bearing new Municipal No.6580, duly described by letters `ABCDE' Civil Revision No.8341 of 2010(O&M) -2- and by pink in colour in the site plan attached with the plaint, situated in Mohalla Bhullerian, Bathinda. Sardar Sardara Singh was the father of the plaintiffs. He had three brothers, i.e., Makhan Singh (since deceased), Bachan Singh- defendant no.5, and Hari Singh, husband of defendant no.1 and father of defendants no.2 to 4. They had migrated from Pakistan at the time of partition in the year 1947. As per case of petitioners-plaintiffs, the said building was allotted to Sardar Sardara Singh, their father, which was total measuring 720 sq.yards. Sardara Singh had sold a portion of the said property measuring 48 sq.yards and he remained owner of remaining 672 sq.yards. He also allowed his brothers, i.e., Hari Singh and Bachan Singh to occupy a portion of the said property out of love and affection as licensees. Sardar Sardara Singh died on 10.6.2007. He executed a Will dated 18.9.1995 regarding his property in favour of plaintiffs and hence, they have become owners of the property bearing Municipal No.6580. Plaintiffs revoked licence of respondents-defendants, however, they refused to vacate the premises in dispute and, hence this suit was filed for possession of the suit property against the defendants. On the other hand plea taken by defendants is that the property bearing No.690 and Municipal No.6580 was allotted to all the brothers when they migrated from Pakistan and, however, conveyance deed was issued in favour of Sardar Sardara Singh being eldest of them and hence plea has been taken that they have been continuing in possession in their own rights as owners by partitioning the same amongst themselves. Specific plea was taken by respondents-defendants that property bearing Municipal No.6580 A-1 is exclusively owned and possessed by defendant no.1, which Civil Revision No.8341 of 2010(O&M) -3- was purchased by her from Milkha Singh and the same is part of the property of Milkha Singh, which was allotted to him by the President of India vide conveyance deed executed in his favour. From the pleadings of the parties, issues were framed and the case was fixed for evidence of petitioners-plaintiffs, when the present application was filed for amendment of the plaint alleging that the property bearing Municipal No.6580 A-1 is also part of the property in dispute and that respondent-defendant no.1 got allotted different municipal number in collusion with the officials of the Municipal authorities. Hence, plea sought to be taken is that defendant no.1 in connivance with municipal authorities got allotted municipal No.6580 A-1 to a portion of the property in dispute constructed on a plot measuring 62 sq.yards out of the said property and that allotment of municipal number is illegal and that respondent-defendant no.1 is not the owner of the said property. Application has been contested by respondents-defendants by taking the plea that property bearing municipal No.6580 A-1 is nothing to do with property bearing municipal No.6580, which is owned by all the brothers as co-sharers and that property bearing municipal no.6580 A-1 is exclusively owned and possessed by respondent-defendant no.1, which was purchased by her from Milkha Singh. Hence, it is contended that amendment is not at all necessary for deciding the controversy in dispute. The application was dismissed by learned trial Court by observing that the property which was allotted to Sardar Sardara Singh was identified by No.690, whereas the other property allotted to Milkha Singh, i.e., predecessor-in-interest or respondent no.1 was identified by No.689 and hence, different property numbers were also allotted by Municipal Civil Revision No.8341 of 2010(O&M) -4- Committee to these different premises. Hence, it has been observed that the amendment is not at all necessary. It was also observed that no justification was also given by plaintiffs for not filing the application for amendment before the commencement of trial. It has been contended by learned counsel for the petitioners- plaintiffs that the property which has been allotted new Municipal No.6580 A-1 also forms part of the property in dispute as per the site plan filed by petitioners-plaintiffs and hence, it is contended that amendment is necessary for proper adjudication of the controversy in dispute between the parties. It is also contended that the application is maintainable under Order VI Rule 17 of the Code as no evidence has yet been adduced by petitioners-plaintiffs and hence, it cannot be said that trial has commenced. On the other hand it has been contended by learned counsel for the respondents that petitioners-plaintiffs intend to extend the scope of present litigation by way of amendment by including property bearing municipal No.6580 A-1, which is exclusively owned and possessed by respondent no.1-defendant no.1 and which was earlier owned by Milkha Singh, bearing property No.689, which was purchased by respondent- defendant no.1. Hence, it is contended that amendment is not at all necessary for the decision of controversy in dispute between the parties and that the amendment cannot be allowed after commencement of trial. It is pertinent to reproduce amended provision of Order VI Rule 17 of the Code, which reads as under:- “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary Civil Revision No.8341 of 2010(O&M) -5- for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” The said provision has been considered by Hon'ble Apex Court in Vidyabai and others v. Padmalatha and another, 2009(1) RCR 120 and it was observed as under: “14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. 15. In Salem Advocate Bar Assn. (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.” In this Judgment, Hon'ble Apex Court referred to earlier decision rendered in Kailash v. Nankhu, 2005(2) RCR (Civil) 379: [(2005) 4 SCC 480], wherein it was observed as under:- Civil Revision No.8341 of 2010(O&M) -6- “13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word “trial” in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word “trial””. Hon'ble Apex Court further observed that as per ratio in Kailash's case (supra) trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. In the present case, the application for amendment was filed after settlement of issues and after the case was fixed for evidence of petitioners-plaintiffs. Hence, application is moved after commencement of trial. However, in view of the proviso to Order VI Rule 17 of the Code as interpreted by Hon'ble Apex Court in Vidyabai's case (supra), petitioners- plaintiffs are having no right to seek amendment unless conditions specified under proviso to Order VI Rule 17 of the Code are fulfilled, i.e., plaintiffs- petitioners have to satisfy the Court that inspite of due diligence they could not file the application for amendment before commencement of trial. As already discussed above, respondents-defendants in the Civil Revision No.8341 of 2010(O&M) -7- written statement has taken the plea that property bearing Municipal No.6580 A-1 is exclusively owned and possessed by defendant no.1, which was purchased by her from previous owner Milkha Singh, which is part of the property allotted to Milkha Singh though adjacent to the property in dispute. Municipal No.6580 has been allotted by Municipal Committee in lieu of earlier No.690 allotted by Rehabilitation Department, which was allotted to Sardar Sardara Singh, father of present petitioners-plaintiffs and, however new number 6580 A-1 has been allotted to property forming part of old No.689 which was allotted to Milkha Singh. There is no explanation on the part of the petitioners-plaintiffs as to why the application was not moved before settlement of issues. Further on merits as well, law is well settled that the amendment can be allowed if the same is a bonafide one and the same is necessary for adjudication of the controversy in dispute. Hon'ble Apex Court in Revajeetu Builders & Developers v. Narayanaswamy and sons and others, 2010 (1) Civil Court Cases 001 (SC), on which reliance has also been placed by counsel for the petitioners- plaintiffs, has laid down certain factors to be taken into consideration while dealing with application for amendment. The relevant paragraph of the same reads as under:- “67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1)Whether the amendment sought is imperative for proper and effective adjudication of the case? (2)Whether the application for amendment is bona fide or mala fide ? Civil Revision No.8341 of 2010(O&M) -8- (3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4)Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6)As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” However, as already discussed above, the present dispute is regarding property bearing old no.690, the number allotted by Rehabilitation Department, while allotting the property in dispute to Sardar Sardara Singh, father of present petitioners-plaintiffs and new municipal No.6580 was allotted by Municipal Committee, whereas property bearing Municipal no.6580 A-1 is part of old No.689, allotted to Milkha Singh by Rehabilitation Department and which was purchased by respondent no.1- defendant no.1 from Milkha Singh. Vide application for amendment, petitioners-plaintiffs intend to enlarge the scope of present litigation to include the property forming part of old Municipal No.689 which was exclusively owned and possessed by respondent -defendant no.1, vide her purchase from earlier owner Milkha Singh. Hence, application cannot be said to be a bona fide one. The same is also not necessary for decision of controversy between the parties as the controversy is regarding the property which was allotted to Sardar Sardara Singh, after partition in which other brothers of Sardar Sardara Singh are also claiming rights, whereas petitioners-plaintiffs had taken the plea that Sardar Sardara Singh was exclusively owner of the said property and after his death they have become Civil Revision No.8341 of 2010(O&M) -9- exclusive owners of the same and possession of respondents-defendants was only as a licencee and after revocation of licence, their possession became unauthorised. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 28.7.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.