CR No.2965 of 2009 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No.2965 of 2009 (O&M) Date of Decision : 26.3.2010 Naib Singh ..Petitioner. Vs. Harnek Mohd. & Khair Din and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Arun Jindal, Advocate for the petitioner. None for respondent No.2. RAKESH KUMAR JAIN, J.(Oral) This revision petition is directed against order dated 17.4.2009 passed by Civil Judge (Jr.Divn.) Chandigarh whereby an application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short `CPC') for amendment of the plaint has been dismissed. Brief facts of the case are that petitioner filed a suit for declaration challenging the sale deed dated 8.7.2004 purported to have been executed by Labhu Ram and Ishar Kaur. In the said suit, Ishar Kaur was not impleaded as a party. Defendant No.1 Labhu Ram filed his written statement on 9.10.2004 and an objection of non-joinder of necessary parties was taken. The petitioner did not file any replication. Issues were framed on 6.1.2007 and at that time, it was ordered that no other issue arises nor claimed by the parties. PF/DM and list of witnesses was ordered to be filed within 7 days. It was clarified that under law only three opportunities will CR No.2965 of 2009 (O&M) -2- be given to the plaintiff irrespective of the fact whether witnesses have been cross-examined by the opposite party or not. Despite the aforesaid order, the petitioner did not produce any witness and the case was adjourned for many dates from 16.2.2007 to 23.2.2010. On 13.4.2007, the petitioner filed an application under Order 1 Rule 10 CPC to implead Ishar Kaur but the application was dismissed on 15.10.2007. The relevant portion of the said order is reproduced as under: “Considered. In order to ascertain whether a particular person is a necessary party in whose absence no effective order can be passed, the entire plaint has to be read as a whole. No doubt, Ishar Kaur was a joint vendor of the sale deed dated 8.7.2004 along with deceased defendant No.1 Labhu Ram yet no relief was claimed against her. On reading the entire plaint, it is clear that plaintiff has challenged the right of Labhu Ram to execute the sale deed of his share. Plaintiff nowhere averred that Ishar Kaur had also executed the sale deed or that she had no right to execute the sale deed. No relief had been claimed against Ishar Kaur. In these circumstances, Ishar Kaur is not a necessary party for deciding the right of Labhu Ram to execute the sale deed in question. Learned counsel for the defendant vehemently argued and apparently rightly that present application has been filed by the plaintiff just to delay the disposal of the present suit. It is to be noted that plaintiff challenged the sale deed executed by defendant No.1 in favour of defendant No.3. When defendant No.1 was alive he had filed written statement admitting the execution of sale deed and also stressing that he was competent to do so. In his written statement he clearly disclosed that Ishar Kaur was co vendor in the said sale deed. Despite the filing of said written statement on 9.10.2004 and despite coming to know about Ishar Kaur, no application for impleading her as necessary party was filed, it is to be noted that present CR No.2965 of 2009 (O&M) -3- application is not filed by Ishar Kaur but was filed by plaintiff himself on 13.4.2007 after about delay of three years. The malafide intention of the plaintiff are clear and there is no explanation as to why this application was moved earlier in the year 2004. Along with present suit another suit of the party is consolidated. Defendant No.3 has sought possession of the suit property against the plaintiff. By prolonging the litigation it appears that plaintiff wants to enjoy the possession of the property purchased by defendant No.3.” The petitioner then filed a Civil Revision No.6065 of 2007 in order to challenge order dated 15.10.2007. While the aforesaid revision was pending, an application under Order 6 Rule 17 CPC was filed by the petitioner in order to implead Ishar Kaur and also to seek decree of possession with the declaration. The said application has been dismissed by the learned trial Court vide impugned order on the ground that the petitioner cannot file the application for amendment for the purpose of impleadment of Ishar Kaur in the presence of an order of dismissal of application filed under Order 1 Rule 10 CPC. Aggrieved against the said order, the present revision petition has been filed. It is worthwhile to mention that CR No.6065 of 2007 was disposed of by this Court on 27.1.2010 with the following order : “On the consent of the learned counsel for the parties, the order dated 27.5.2009 is recalled. CM is disposed of accordingly. Main Case This revision petition has been filed by the petitioner whereby his application for impleading Ishar Kaur wife of Chet Ram as defendant No.1-A has been declined. It is not in dispute that petitioner also moved an application for amendment in the pleadings and sought to amend his suit whereby he also wanted to implead Ishar Kaur CR No.2965 of 2009 (O&M) -4- wife of Chet Ram, as defendant No.1-A. The aforesaid application was dismissed by the trial Court vide order dated 15.10.2007. The aforesaid order dated 15.10.2007 is under challenge before this Court in Civil Revision No.2965 of 2009. It may be observed herein that in case the aforesaid revision petition is allowed, the relief sought in this petition will automatically be available to the petitioner and in case the aforesaid revision petition is dismissed then the petitioner has no case. The petitioner is not allowed to amend his pleadings whereby he wanted to implead Ishar Kaur as defendant No.1-A. In view of the aforesaid fact the revision petition is dismissed with the observation that the dismissal of this revision petition will not have any bearing on the merits of revision petition No.2965 of 2009.” Learned counsel for the petitioner has, inter alia, argued that the amendment is sought for the purpose of proper adjudication of the lis between the parties as no prejudice is going to be caused to the respondents because the case is fixed for evidence but no evidence has been led so far. On the other hand, counsel for the respondents has submitted that the petitioner cannot be allowed to implead Ishar Kaur by way of filing an application under Order 6 Rule 17 CPC specially when his application under Order 1 Rule 10 CPC has been dismissed by the trial Court and the revision has also been dismissed by this Court. It is further submitted that in view of Proviso to Order 6 Rule 17 CPC, the petitioner is not entitled to amend the plaint as he had the knowledge of the sale having been effected by Labhu Ram and Ishar Kaur even before the filing of the suit and the suit, if any to be, independently filed against Ishar Kaur has already become time barred, therefore, by virtue of amendment, a suit which has become time barred, cannot be brought within time. CR No.2965 of 2009 (O&M) -5- I have heard learned counsel for the parties and have perused the record with their assistance. It is no doubt true that the petitioner had the knowledge of the sale having been effected by Labhu Ram and Ishar Kaur together and at the first instance, an objection was taken in the written statement that the suit is bad for non-joinder of necessary parties but still no effort was made by the petitioner to implead Ishar Kaur as a party and in this process, period of more than three years had expired. The question thus, arose that whether amendment of the plaint can be allowed in order to negate the order of the same Court where an application under Order 1 Rule 10 CPC has been dismissed and the petitioner had the prior knowledge of the fact which is sought to be brought on record by way of impleadment and the amendment can be allowed to bring a suit within limitation though it is barred by time. The Supreme Court in the case of Ajendraprasadji N.Pande & another Vs. Swami Keshavprakeshdasji N. & others 2007(1) RCR 35 has held that as per Proviso to Order 6 Rule 17 CPC, amendment in pleadings cannot be allowed when trial had commenced, when the issues are settled and case is set down for recording of evidence. Party seeking amendment has to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. In another case State Bank of Hyderabad Vs. Town Municipal Council 2007(1) RCR(Civil) 416 the Supreme Court has held that Court will not allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application. This Court in the case of Smt.Krishna Rani Vs. Ram Kishan 2003(1) Civ.CC 519 has held that time barred relief cannot be brought within limitation by way of amendment of the suit as it defeats the valuable CR No.2965 of 2009 (O&M) -6- right accrued to the other party. In another case decided by this Court in the case of Karnail Singh Vs. Gurbax Singh and others 2006(1) RCR(Civil) 218 it has been held that if the sale is within knowledge of the petitioner even prior to the filing of the suit, application for impleadment after three years of the filing of the written statement should not be allowed. In another case of Delhi High Court in the case of Mukesh Kumar Jain Vs. Ashok Shukla 2007(5) RCR(Civil) 396 it has been held that defect can be cured by addition of LRs under Order 22 or under Order 1 Rule 10 CPC, however when the suit is against newly added defendants ought to be within time then it should be allowed but otherwise it should not be allowed. The sum and substance of the aforesaid decisions is that neither a party to a sale deed can be impleaded after expiry of period of three years nor the plaint can be amended for the purpose of impleadment after that period as a valuable right vests in favour of the other side. In the present case, not only the petitioner had the knowledge that sale has been effected by late Labhu Ram and Ishar Kaur but was also made aware of this fact by the respondents in the written statement by raising a plea of suit being bad for non joinder of necessary parties yet no effort was made by the petitioner to implead Ishar Kaur and after framing of issues, obtained numerous opportunities to lead evidence. It was after the expiry of statutory period to challenge the sale deed, an application under Order 1 Rule 10 CPC was filed which was dismissed with a specific order by the trial Court and the revision petition was also dismissed by this Court against the said order though with a rider that it would not affect the decision of the application filed under Order 6 Rule 17 CPC yet the fact remains that amendment sought is highly belated and offends Proviso to Order 6 Rule 17 CPC. CR No.2965 of 2009 (O&M) -7- Thus, in my view, the petitioner cannot succeed by taking the plea that amendment is for the purpose of proper decision and no prejudice would be caused to the other side as he himself has to be blamed for contumacious delay in filing the application. Thus, with these observations, the present revision petition is dismissed though without any order as to costs. (Rakesh Kumar Jain) 26.3.2010 Judge Meenu