Civil Revision No. 2712 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2712 of 2009 Date of decision: 30.05.2009. Mahant Kapil Dev ...Petitioner Versus Smt. Parkash Wati and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Amandeep Singh, Advocate for the petitioner Mr. M.L.Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate for the respondents-Caveator S.D.ANAND, J. The defendant-petitioner has filed the present petition in order to obtain invalidation of the impugned order vide which the learned Trial Court allowed the plaintiffs-respondents to amend the plaint, and to thereby claim a relief for a decree for the joint possession of the land in suit. Facts, having relevant bearing on the controversy, in the first instance:- The plaintiffs-respondents filed a suit for a declaration that they are owners (to the extent of 1/4th share each) in possession of the land in suit. The property was owned by one Dr. Madho Ram, who was father of the plaintiff-respondents No.3 and 4 (hereinafter referred to as the performa respondents). He died intestate on 16.9.1995, leaving behind defendants-respondents no.1 to 4 as legal Civil Revision No. 2712 of 2009 -2- **** heirs. In terms of the Hindu Succession Act, respondents no.1 and 2 inherited the entire estate of Dr. Madho Ram to the extent of 1/2share each. The petitioner herein, being a son of respondent no.4 Dr. Rajinder Partap, did not inherit any right title or interest therein as he was not a legal heir of deceased Dr. Madho Ram. The petitioner herein was a big boozer. He was an NRI who returned from USA and started residing with Dr. Madho Ram in a house which had been built by Dr. Madho Ram in the name of respondent no.4 Dr. Rajinder Partap (father of the petitioner herein). The petitioner herein forged a will purported to have been executed by Dr. Madho Ram. The plaintiffs-respondents filed a suit for the relief aforementioned by raising a plea that the impugned will is a forged affair. The petitioner herein contested the plea aforementioned and averred the validity of the impugned will. The averment, made in the context, was that the property in suit had been managed by Dr. Madho Ram, as a Mehant, for religious purpose (Dharm Arth) and Dr. Madho Ram appointed him as Chela “Gaddi Nasheen” and executed a registered will dated 19.4.1995 in his favour. The petitioner denied that the plaintiffs-respondents had anything do with the possession of those properties. The suit was contested by other defendants as well. In the course of the replication, the plaintiffs-respondents reiterated their proprietary and possessory title of the properties in suit. The learned Trial Court, while allowing the amendment plea, held that the amendment plea shall not change the nature of the suit which (suit) shall continue to be a cause for a declaration and Civil Revision No. 2712 of 2009 -3- **** permanent injunction. The further observation made by the learned Trial Court, in the context, was that the alternative relief was being added by way of amendment due to change in circumstances during the pendency of the suit i.e. “defendant no.3 has stated claiming the possession when his affidavit by way of evidence as examination-in- chief has been filed.” The learned counsel for the defendant-petitioner argued that the above quoted finding by the learned Trial Court was factually incorrect inasmuch as it is not that the defendant-petitioner had asserted the possessory title in the course of examination-in-chief for the first time. Infact, the argument proceeded, there was a plea in the written statement itself that the possession of the property in suit was that of defendant-petitioner. It was also argued that the amendment is highly belated inasmuch as the case is already at a mature stage and there is an order passed by a Coordinate Bench of this Court in Civil Revision No.5202 of 2004 directing the expeditious disposal of the suit on or before 31.8.2006. The plea, raised in the context, is that the order aforementioned has also been violated by the learned Trial Court (on account of the non-disposal thereof within the outer limit fixed by this Court). It is apparent, from a conjunctive perusal of the pleadings (plaint, written statement and replication) that the plaintiffs- respondents had throughout been averring that it is they who are in possession of the property in suit and are also entitled to the proprietary title thereof as natural heirs of Dr. Madho Ram who died intestate. In the course of the written statement, the plea was Civil Revision No. 2712 of 2009 -4- **** resisted in toto and the averment by defendants therein was that it is they who are in possession of the property in suit. That averment was, thus, in complete denial of the averment made by the plaintiffs- respondents in the plaint and the replication about their possessory title of the land in suit. The learned Trial Court had, thus, committed a factual error by observing that the filing of the amendment had been occasioned by the making of an averment in the course of the affidavit (examination in chief) of defendant no.3 at the trial. The allowance of the plea, though proposed to be raised in the alternative, shall enable the plaintiffs-respondents to wriggle out of their consistent plea it is they who are in actual possession of the property in suit. The allowance of that plea at the indicated belated stage is legally inappropriate. The reliance, placed by the learned Senior Counsel appearing on behalf of the respondents, on Puran Ram Vs. Bhaguram and another 2008 (2) Supreme 166, Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, Prem Bakshi and others Vs. Dharam Dev and others JT 2002 (1) SC 34 and Raj Kumar Vs. Dimpender Kaur Sethi, 2004 (8) Supreme 196 is misconceived. In Puran Ram's case (supra), the facts were entirely different. That was a suit filed for specific performance of an agreement and the proposed amendment only sought change of “a part of the description of the suit property”. Jai Jai Ram Manohar Lal's case (supra) was also based upon different facts. In that case, the suit had been filed by the plaintiff in Civil Revision No. 2712 of 2009 -5- **** the business name. When the party opposite raised a plea that the firm being an unregistered entity was incompetent to sue, the plaintiff applied for amendment to pursue the suit in his individual name. In Prem Bakshi's case (supra) too, the facts were entirely different. In that case, the plaintiff therein “only want to bring to the notice of the Court the subsequent facts”. In the present case, it has been found on point of fact that no subsequent fact prompted the filing of the amendment plea and the learned Trial Court committed a factual error. In Raj Kumar's case (supra), also the facts were entirely different. That was a suit for specific performance where in the plaint plaintiff omitted to aver that he was and is ready and willing to perform his part of the agreement. The proposed amendment only enabled him to insert a plea that “the plaintiff was and is ready and willing to perform his part of the agreement”. In the light of the foregoing discussion, it is apparent that the impugned order deserves to be invalidated and it is so ordered accordingly. The petition shall stand allowed. The impugned order shall stand set aside. However, in the peculiar circumstances of the case including the order passed a Coordinate Bench (Hemant Gupta, J.) of this Court in Civil Revision No.5202 of 2004, the learned Trial Court shall proceed to dispose of the suit at the earliest by giving it priority over the other file. May 30, 2009 (S.D.Anand) Pka Judge