Civil Revision No. 6410 of 2007 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Civil Revision No. 6410 of 2007 (O&M) Date of Decision : 1.12.2008 Beg Raj .......... Petitioner Versus Balbir alias Balley & Another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vikram Punia, advocate for the petitioner. Mr. Ashok Singla, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This revision petition under Article 227 of the Constitution of India is directed against the order dated 30.11.2007 passed by the learned Civil Judge (Jr. Divn.), Sonepat whereby the application moved by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure has been ordered to be dismissed. The petitioner filed a suit for permanent injunction restraining the defendant-respondents from interfering in the peaceful possession of the petitioner by claiming that the plot was being used by them along with other co-sharers. The parties were allowed to lead evidence. When the case was Civil Revision No. 6410 of 2007 (O&M) -2- at the stage of arguments, the petitioner moved an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint for pleading therein that during the pendency of the suit the petitioners have been dispossessed by raising a wall, therefore, necessity has arisen to plead the subsequent event and also to modify the relief clause from that of permanent injunction to mandatory injunction with consequential relief of permanent injunction. The application moved by the petitioner has been declined by observing that the question of raising of wall was very much within the knowledge of the petitioner when the suit was filed, as in the cross- examination the plaintiff admitted that he himself had constructed the wall around the disputed land. This fact was also admitted by the petitioner in the complaint which was made to the Superintendent of Police, Sonepat. The main ground on which the application has been rejected is that the learned trial Court formed an opinion that the petitioner has failed to give the date as to when he was dispossessed by the respondent. It was held that the application moved was not bona fide and has been moved to delay the proceedings. The learned counsel for the petitioner contends that the impugned order cannot be sustained as the learned trial Court could not have gone into the merits of the case while deciding the application under Order 6 Rule 17 of the Code of Civil Procedure as the same could only have been determined after the parties were allowed to lead evidence. Civil Revision No. 6410 of 2007 (O&M) -3- The learned counsel for the petitioner contends that in order to avoid the multiplicity of litigation petitioner should have been allowed to amend the suit to plead the events which happened during the pendency of the suit especially when the Court is always entitled to modify the relief to which the party is entitled to in view of the evidence on record. In support of this contention the learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Kumar Barnwal Vs. Ram Lakhan (dead) 2007(3) RCR (Civil) 279 wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “To similar effect is the decision of this Court in Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) RCR (Rent) 150 : (2002 (2) SCC 256). It was, inter alia, observed in that case as follows: "11. The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in Civil Revision No. 6410 of 2007 (O&M) -4- accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. The Motor & General Traders (1975 (1) SCC 770), this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fairplay is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The court speaking through Krishna Iyer, J. affirmed the proposition that court can, so long as the litigation pends, take not of updated facts to promote substantial justice. However, the court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy. (ii) rules of procedure may be bent if no specific provision or fairplay is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on the notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which Civil Revision No. 6410 of 2007 (O&M) -5- consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. R.M.N.N. Nagappa Chettiar (AIR 1953 SC 235) this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleading the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho and Ors. (1898) 25 Indian Appeals 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted. 13. Power of the Court to take note of subsequent events, specially at the appellate stage, came up for consideration of a Full Bench of Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan v. Mohammad Obedalla Khan, AIR 1953 Nag 361. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of an action. No doubt, Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right of the plaintiff. The doctrine itself is of an Civil Revision No. 6410 of 2007 (O&M) -6- exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir Asutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title 'pendente lite' is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant- appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the Court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance unless brought to the notice of the Court in accordance with established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff- respondent have achieved a finality or are such Civil Revision No. 6410 of 2007 (O&M) -7- proceeding wherein the plaintiff-respondent cannot possibly have any sustainable defence." 10. Earlier in Ramesh Kumar v. Kesho Ram 1992(1) RCR (Rent) 370 : (1992 Supp. (2) SCC 623), it was held as follows: "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR 1941 FC 5) Chief Justice Sir Maurice Gwyer observed: (AIR p.6): "But with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama, (1934) 294 US 600, Hughes C.J. said: 'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered'. And in Pasupuleti Venkateshwarlu v. The Motor & Civil Revision No. 6410 of 2007 (O&M) -8- General Traders (1975 (1) SCC 770) Justice Krishna Iyer said: (SCC p. 772, para 4). "We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid." The learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. 2006(2) RCR (Civil) 577, wherein the Hon'ble Supreme Court has been pleased to lay down that it is Civil Revision No. 6410 of 2007 (O&M) -9- mandatory on court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties and Court should not go into the correctness or falsity of the case in the amendment. It should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. The learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Om Prakash Gupta Vs. Ranbir B. Goyal 2002(1) PLJ 169 wherein it has been held that the Court can take note of the subsequent events in order to determine the real controversy. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the petitioner. The petitioner filed a suit claiming therein that he was in possession of the plot along with others and that he has raised a wall around his plot. When the case was fixed at arguments stage the petitioner moved the present application without disclosing the date and time with regard to his dispossession and as to when the wall was constructed, which is claimed to be subsequent event by the petitioner. In order to succeed in amendment the petitioner is to required to make out a prima facie case that the subsequent event have arisen, which are necessary for determining real controversy between the parties. The learned Court below has rightly held that the present Civil Revision No. 6410 of 2007 (O&M) -10- application was not bona fide but an attempt to delay the proceedings. The authorities relied upon by the learned counsel for the petitioner have no application to the facts of the present case. No ground for interference is made out. Dismissed. 1.12.2008 ( VINOD K. SHARMA ) 'sp' JUDGE