C.R. No. 956 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 956 of 2007 (O&M) Date of decision: January 30, 2009 Joginder Singh .. Petitioner v. Improvement Trust, Ludhiana and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Amandeep Singh, Advocate for the petitioner. Mr. Sudhir Paruthi, Advocate for respondent No. 1. Mr. M. L. Saggar, Senior Advocate with Mr. G.S. Brar, Advocate for respondent No. 2. .. Rajesh Bindal J. The plaintiff has approached this Court impugning the order dated 9.11.2006, passed by the learned court below, whereby the application filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint, was dismissed. Briefly, the facts are that late Jasbir Singh Virk, predecessor-in- interest of the petitioner-plaintiff, filed a suit for permanent injunction restraining the respondents-defendants from interfering in the possession of the property and also from demolishing the house constructed thereon. It was claimed that Kuldeep Singh and Amrik Singh sons of Amar Singh had sold the same to the predecessor- in-interest of the petitioner vide sale deed dated 22.2.1991. Thereafter, possession of the same was also handed over to him. The suit was filed with the allegations that respondent No. 2-defendant No. 2, who was neighbour of the petitioner, started interfering in the possession of the petitioner claiming that the property in question was allotted to him in Model Town Extension Part-II (C) Scheme, notified by the Government on 7.5.1964. It is in this suit that during the pendency thereof, the possession of the property in question was taken by respondent No. 2- defendant No. 2 in the year 1999 on account of which the petitioner-plaintiff sought the permission of the Court to amend the plaint in order to claim relief of C.R. No. 956 of 2007 [2] possession. The application having been rejected by the impugned order, the present petition has been filed. Learned counsel for the petitioner submitted that the predecessor-in- interest of the petitioner purchased the property in dispute vide registered sale deed dated 22.2.1991 from Kuldeep Singh and Amrik Singh sons of Amar Singh. Ever since then he was in possession thereof which consists of one room and boundary wall bearing Municipal No. B-XVIII-3891/33 (116-B) measuring 266 square yards. Since the possession of the petitioner on the property in dispute was sought to be disturbed by respondent No. 2- defendant No. 2 on the plea that the same had been allotted to him in Model Town Extension Part-II (C) Scheme notified by the Punjab Government on 7.5.1964. In an application for interim injunction filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the learned court below directed the parties to maintain status quo regarding possession. It is further submitted that during the pendency of the suit, on 30.3.1994, respondent No.2 filed a suit for possession against the petitioner and got an ex parte judgment and decree dated 12.1.1998 in his favour and in execution thereof was able to take possession of the property in dispute from the petitioner in the year 1999. It is on account of this development that the petitioner sought to amend the plaint to seek the relief of possession as well. He further submitted that the application filed by the petitioner for setting aside the ex parte judgment and decree dated 12.1.1998 passed against him is still pending consideration before the court below. Assailing the reason assigned by the learned court below for dismissing the application for amendment filed by the petitioner, it was submitted that no doubt the possession of the property was taken from the petitioner way back in the year 1999, however, on account of the death of father of the petitioner, the original plaintiff on 25.12.1999, application for impleading legal representatives was filed, which was decided only in the year 2003. It was thereafter that the application for amendment of the plaint was filed. Mere delay in filing of the application should not come in way, once it is found that the amendment sought by the petitioner is proper and necessary for effective adjudication of the lis between the parties, especially when the cause of action to file the application for amendment had arisen during the pendency of the suit. In case the amendment is not allowed, the same will result in multiplicity of litigation which needs to be avoided. Still further assailing the stand of respondent No. 2 regarding allotment of property in his favour in Model Town Extension Part-II (C) Scheme, it was submitted that the same was challenged before this Court in C.R. No. 956 of 2007 [3] C.W.P. No. 867 of 1984, titled as “Satinder Pal Singh v. State of Punjab”, decided on 25.7.1984 and the aforesaid scheme was quashed. Accordingly, the very basis of respondent No. 2 to claim the ownership and possession of the property goes. It is further submitted that the claim of the petitioner in the suit is based on a sale deed executed by the owners of the property in his favour. Even if a suit for possession is filed, the limitation therefor was still available. Reliance was placed upon Pankaja and another v. Yellappa (Dead) by LRS. and others, (2004) 6 SCC 415 and Rajesh Kumar Aggarwal and others v. K. K. Modi and others, (2006) 4 SCC 385. In response to the contentions made by learned counsel for the petitioner, learned counsel for respondent No. 2 submitted that he was allotted the plot in Model Town Extension Part- II (C) Scheme on 7.5.1964. In a suit for possession filed by respondent No. 2 on 30.3.1994, the petitioner was proceeded against ex parte and a decree was passed in his favour on 12.1.1998 and the possession was taken by respondent No. 2 in execution of the decree and once the application filed by the petitioner for setting aside of the ex parte decree is pending before the court below, in case the same is accepted, the petitioner will be entitled to restitution of the possession in terms of Section 144 of the Code of Civil Procedure. Commenting upon the conduct of the petitioner, it was submitted that possession of the property in dispute was taken by respondent No. 2 way back in the year 1999. Thereafter, the evidence of the petitioner was closed by order of the Court on 8.11.2004 and it was during the course of evidence being led by the defendants that the application was filed. Under such circumstances, such an application should not be allowed as the suit filed for injunction had already become infructuous, keeping in view the fact that possession has been taken by respondent No. 2 in execution of the decree and not by unfair means. If so advised, the petitioner may file a separate suit for possession. Heard learned counsel for the parties and perused the paper book. It is evident from the facts on record that the predecessor-in-interest of the petitioner filed a suit for permanent injunction way back in the year 1991 after purchase of property vide registered sale deed dated 22.2.1991 from Kuldeep Singh and Amrik Singh sons of Amar Singh. The learned trial court directed the parties to maintain status quo regarding possession during the pendency of the suit. The claim of respondent No. 2 on the property was on the basis of allotment made by Improvement Trust in Model Town Extension Part-II (C) Scheme notified on 7.5.1964. However, the scheme was set aside by this Court vide judgment dated 25.7.1984 in C.W.P. No. 867 of 1984. During the pendency of the suit for C.R. No. 956 of 2007 [4] permanent injunction filed by the petitioner, respondent No. 2 filed a suit for possession in which an ex parte decree was passed against the petitioner on 12.1.1998. No material has been placed on record to show as to whether the factum of present litigation pending in the court regarding the same property and also the order of status quo having been passed were disclosed in the said suit or not. The Court was not further apprised of the fact as to what steps were taken to serve the petitioner and under what circumstances, he was proceeded against ex parte, once the factum of pendency of the present suit, in which the petitioner as well as respondent No. 2 both were parties, was in the knowledge of respondent No. 2, plaintiff in the other suit filed by him. However, the fact remains that it is in execution of the ex parte decree, the possession of the suit property was taken from the petitioner by respondent No. 2 in the year 1999, during the pendency of the present suit. Meaning thereby that cause of action to file the amendment application to claim the relief of possession arose during the pendency of the suit filed by the petitioner and under such circumstances, a prayer for amendment could very well be made and accepted to avoid multiplicity of litigation. However, matter does not end here as it is a case where there is substantial delay in filing the application. The possession from the petitioner having been taken by respondent No. 2 in the year 1999, the application was filed in the year 2006. For certain period therein, some explanation is available, namely, that on 25.12.1999, the original plaintiff in the suit, i.e., father of the petitioner, expired. An application filed for impleading his legal representatives was decided only in the year 2003. Thereafter, it can very well be said that there is lapse on the part of the petitioner in not filing the application for 3 years for amendment of the plaint to claim the relief of possession. However, in my opinion, that itself cannot be a ground for rejecting the claim for amendment of the plaint for the reason that the relief, which is sought to be claimed by the petitioner by way of amendment of the plaint is well within limitation and even a separate suit for claiming the same is not barred, but that will result in multiplicity of litigation. In the present case, respondent No. 2 will not suffer any prejudice in case the amendment in the plaint is allowed to claim the relief of possession. However, considering the fact that the application for amendment of the plaint was filed belatedly, I deem it appropriate to burden the petitioner with heavy costs. The same are quantified at Rs. 20,000/-. Accordingly, subject to payment of Rs. 20,000/- as costs to respondent No. 2, the application for amendment filed by the petitioner is allowed. The impugned order passed by the learned court below is set aside. The parties to the dispute are directed to appear before the learned C.R. No. 956 of 2007 [5] court below on 9.2.2009. Considering the fact that the suit was filed way back in the year 1991, the trial court is directed to dispose of the same on or before 7.8.2009. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 30.1.2009 mk