Civil Revison No.4663 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revison No.4663 of 2008 Date of decision:03.02.2010. Deepak Thapar ...Petitioner Versus Ravinder Thapar ...Respondent CORAM: HON’BLE MR. JUSTICE S.D.ANAND. Present: Mr. Piyush Kant Jain, Advocate, for the petitioner. Mr. Sumeet Mahajan, Senior Advocate, with Mr. Sham Lal Bhalla, Advocate, for the respondent. ***** S.D.ANAND, J. The validity of order dated 30.07.2008, granted by the learned Trial Court, is under challenge at the hands of the plaintiff- petitioner (hereinafter referred to as `the petitioner'). It is vide that order that the learned Trial Court allowed a plea under Order 6 Rule 17 CPC filed by the respondent – defendant (hereinafter referred to as `the respondent') for amendment of the written statement to take up a plea which is extracted hereunder: - “6. In fact, the whole property bearing Municipal No.B-VII- 567 to 570 was popularly known as Raman market in which three families i.e. Thapar Family, Kapoor Family and Sehgal Family were the co-owners. The said co-ownership was known as Raman Market. There were different tenants in the entire family and a Munshi was kept by the said co-ownership and he used to realize rent from different tenants and Civil Revison No.4663 of 2008 -2- thereafter rent used to be divided amongst the co-owners according to the extent of each share of every member of the family. After the main suit for partition was filed which is pending adjudication in the court of Smt. Mandeep Bedi, PCS, Civil Judge (Jr. Div.), Ludhiana, the receiver was appointed by the Court and Shri Mela Ram receiver had been collecting rent and distributing the same amongst the co- owners to the extent of each share. The residential Kothi where the Thapar family was residing was under tenancy with Thapar family and Sh. Chhajju Ram Thapar being head of the family used to pay Rs.50/- per month as rent. Even the Kapoor family and Sehgal family also used to pay regular rent @ Rs.50/- per month jointly for the premises in their occupation. Thus, Sh. Chhajju Ram Thapar was himself a tenant and could not have executed any Will regarding the ownership of the said residential Kothi. The alleged Will of Chhajju Ram Thapar is shrouded by suspicious circumstance and is not a result of free will and desire. Sh. Chhajju Ram Thapar was having in different health about 1-1/2 years before his death. Moreover, even otherwise Sh. Chhajju Ram Thapar could not have executed the Will regarding the residential Kothi (Property in dispute), which was not owned by him and was on rent under the Raman Market. Even the shop in occupation of Bhagat Ram/Ram Dhan was on tenancy with co-ownership Raman Market and not with Sh. Chhajju Ram Thapar. Thus no Will could have been executed by Sh. Chhajju Ram Thapar in Civil Revison No.4663 of 2008 -3- respect of the said residential Kothi. The present suit, is therefore, not maintainable and is liable to be dismissed.” For enabling appropriate appreciation of the controversy, it would be useful to indicate the respective pleas of the parties in the first instance. The plaintiff-petitioner filed the impugned suit on the basis of a Will dated 29.08.1991 executed by his father Shri Chhajju Ram Thapar, bequeathing the property in dispute to him. Shri Chhajju Ram Thapar aforementioned died on 06.02.1992. The respondent had been allowed to stay on the first floor of disputed house, as a licensee. That license came to be revoked on 30.09.1994. The plea raised by the defendant – respondent in the course of the written statement filed on 13.12.1994 was that he, along with the petitioner herein and some others, are co-owners of that suit property. The averment made by the petitioner that the respondent was a licensee in the premises was denied by the latter. The respondent had simultaneously also set up a plea of being exclusive owner of the property on the basis of a Will dated 20.04.1977 executed by Smt. Gian Devi, grandmother of the parties. It was indicated in the written statement itself that these two pleas, which are inconsistent inter se, are being taken up. On the basis of the Will dated 20.04.1977, the respondent claimed to have become owner in possession of the present suit property to the extent of ½ share and he has already filed a suit for declaration of title against the petitioner herein. It is, thus, apparent that the respondent had raised two pleas in the course of the written statement. One plea was that he is a co- owner of the property in suit, along with the petitioner herein and some others. The other plea set up was of exclusive ownership (qua ½ share of Civil Revison No.4663 of 2008 -4- the property in suit) based upon the registered will dated 20.04.1977 executed by Smt. Gian Devi (grandmother of the parties). The proposed amendment would enable the respondent to aver that the initial owner of the property i.e. Chhajju Ram Thapar was, in fact, himself a tenant in the premises aforementioned and that he was thereby not competent to execute the Will (in relation thereto) set up by the petitioner. The proposed amendment would also enable the respondent to aver that Shri Chhajju Ram Thapar used to pay rent of Rs.50/- per month to himself and used to collect the same amount of rent from the members of Kapoor family and Sehgal family, who were in occupation thereof. The learned counsel appearing on behalf of the petitioner argues that the impugned order would invalidate the taking of three inter-se inconsistent pleas by the respondent. This, the argument proceeded, is not conceivable at law. Reliance, in support of the advocate view, was placed upon Harbhol Singh Vs. Pritam Singh, 2001 (3) R.C.R. (Civil) 806. On the other hand, the learned counsel appearing on behalf of the respondent argues in favour of the line of reasoning adopted by the learned Trial Court. The petition deserves to be allowed. The reasons therefor are as under: - i) As already indicated, the petitioner herein had raised a pure and simple plea to the effect that he derives title to the property from the Will dated 29.08.1991 which had been executed in his favour by his father Chhajju Ram Thapar. As against it, the respondent herein had Civil Revison No.4663 of 2008 -5- taken up two pleas in the initially filed written statement. One plea was that the respondent herein is a co-owner of the disputed property, along with the petitioner herein and some others. The other plea, raised in the alternative, was that he derives title (to the extent of ½ share of the disputed property) on the basis of the Will dated 20.04.1977 executed by Smt. Gian Devi (grandmother of the parties). Those two pleas were also mutually inconsistent. The allowed plea would enable the respondent herein to aver that the common ancestor of the parties (i.e. Chhajju Ram Thapar) did not, in fact, own the property in suit and that he too was a tenant therein. That proposed plea would appear to be aimed at a challenge to the very competence of Chhajju Ram Thapar to execute a Will in favour of the petitioner herein. The allowance of the proposed plea would enable the respondent herein to take mutually destructive pleas and the allowance of the plea aforementioned would be to the disadvantage of the petitioner herein. ii) The observation of the learned Trial Court to the effect that “no prejudice is likely to be caused to the plaintiff as he will get an opportunity to controvert the pleas sought to be taken through the proposed amendment by filing replication” is unsustainable and the same applies to the other observations made by the learned Trial Court to the effect that “it will not otherwise Civil Revison No.4663 of 2008 -6- change the nature of the case in any way and further the amendment sought to be made is just and necessary for proper adjudication of the controversy between the parties”. In the light of the aforementioned discussion, I have no reservations in holding that the impugned order cannot be upheld. The petition shall stand allowed. The impugned order dated 30.07.2008 shall stand set aside. It also cannot be lost sight of that, as noticed by the learned Trial Court itself in the course of the impugned order, the suit under reference had been filed in the year 1994 and it has been hanging fire ever since then. The trial commenced long ago but has not been able to make much headway, for one reason or the other. The belated filing of the plea aforementioned would also justify the declining thereof. February 03, 2010 (S.D.ANAND) vinod* JUDGE