Civil Revision No. 7589 of 2009 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 7589 of 2009 Date of Decision: December 16, 2011 Parkashveer .... Petitioner Versus Smt. Champa and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Ajay Jain, Advocate, for the petitioner Mr. Arun Yadav, Advocate, for the respondents. VIJENDER SINGH MALIK, J. Parkashveer, one of the plaintiffs-appellants has brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 2.12.2009 (Annexure P3) passed by learned Additional District Judge, Rewari, vide which the application of the appellants under order 6 Rule 17 read with section 151 CPC for amendment of the plaint has been dismissed. To begin with, plaintiffs filed a suit for declaration that they along with defendants No. 27 to 36 have become owners of the suit land Civil Revision No. 7589 of 2009 2 .. as defendants No.1 to 26 have lost the equity of redeemtion in respect of the land in question. It has been claimed in the suit that Bishna was in possession of suit land as mortgagee and after his death, the plaintiffs had been mortgagees in possession of the suit land. It was the case of the plaintiffs that the suit land was mortgaged by predecessor-in-interest of the respondents in favour of Bishna vide mutation No. 186 dated 20.6.1899 for a sum of Rs. 11/- and the respondents failed to redeem the said land by payment of mortgage money and, therefore, the plaintiffs alongwith the proforma defendants have become owners of the suit land. After due trial, learned Additional Civil Judge (Senior Division), Kosli dismissed the suit vide judgment and decree dated 29.1.2007. The plaintiffs filed appeal against the said judgment and decree and during the pendency of the same, they applied for the amendment of the plaint. Their claim in the application is as under:- Claiming that the complete details of the land in question is mentioned in para No.1 of the plaint, it has been averred that in para No. 3 of the plaint the land in dispute has been claimed as mortgaged vide mutation No. 186 dated 20.6.1899 for consideration of Rs.11/- with the ancestors of the plaintiffs. The said land was not redeemed by the ancestor of defendants No. 1 to 26 and more than 102 years have passed since then on account of which, the plaintiffs have become owners in possession of the suit land. It is further averred that the defendants in their written statement had asserted that the land mortgaged vide mutation No. 186 was redeemed vide mutation No. 565 dated 7.7.1909. So, it was claimed by the defendants that the plaintiffs Civil Revision No. 7589 of 2009 3 .. have wrongly averred in the plaint that the land in question was mortgaged vide mutation No. 186. It is further averred that the land mentioned in mutation No. 186 was mortgaged with Chajju Ram son of Tota Ram whereas the land in disputed was mortgaged by ancestor of defendants No. 1 to 26. It is, therefore, prayed that the plaint may be permitted to be amended by incorporating the following passage in para No. 3 of the plaint. “the land as mentioned in para No. 1 of the plaint was mortgaged with the father of the plaintiffs Sh. Bishna son of Chiranji Lal and the same was mortgaged by the ancestor of the defendants No. 1to 26.” The application was opposed by the respondents. They claimed that the application is not maintainable and is highly belated. It is further averred that the appeal has been pending since March, 2007. It is further denied that land mortgaged vide mutation No. 186 is different from the land covered under mutation no. 565. It is further averred that they had clearly pleaded in the written statement that the land in dispute has already been redeemed vide mutation No. 565 and that subsequent revenue entries were incorrect and without basis. They have averred that in the replication, the plaintiffs reiterated their stand of mortgage vide mutation No. 186 and pleaded that mutation No. 565 is a fabricated document. It is further averred that the plaintiff appearing as PW-3 has stated in his cross-examination that the land in dispute was mortgaged with their grand father Chajju. The plaintiffs are claimed to be trying to take a contradictory stand claiming that the suit land was mortgaged with Civil Revision No. 7589 of 2009 4 .. Bishna son of Chiranji. It is further averred that the plaintiffs have not given the particulars of mortgage sought to be pleaded by way of amendment e.g., the date of mortgage, the mutation number of mortgage and other particulars. It is claimed that the suit was filed in the year 2001 and it was decided on 29.1.2007, but no application for amendment was made alongwith the grounds of appeal. It is further averred that an application was rather filed for withdrawal of the suit with permission to file a fresh suit on the same cause of action, which was dismissed by the court of learned Additional District Judge, Rewari and the revision preferred by the appellants was dismissed by the High Court. It is claimed that de novo trial of the suit will have to commence if the application is allowed. Claiming the application to be malafide, the same is prayed to be dismissed. Hearing learned counsel for the parties, learned Additional District Judge, Rewari has dismissed the application vide order dated 2.12.2009. Learned Additional District Judge, Rewari could not find the amendment sought to be bonafide. Aggrieved by the said order, the plaintiffs-appellants have brought this revision petition. I have heard Mr. Ajay Jain, learned counsel for the petitioner and Mr. Arun Yadav, learned counsel for the respondents. I have gone through the record carefully. After taking the court through the facts of the case and the developments that have taken place upto the stage of making the application for amendment, learned counsel for the petitioners has Civil Revision No. 7589 of 2009 5 .. submitted that proviso to Order 6 Rule 17 CPC is not applicable to civil suits brought before 1.7.2002. According to him, in the suits brought before this date, the party seeking amendment is not required to satisfy the court that the matter could not be raised inspite of due diligence. In this regard, he has placed reliance on the decision of Hon`ble Supreme Court of India in State Bank of Hyderabad Vs. Town Municipal Council 2007 (1) RCR (Civil) 415, where it is laid down that the proviso to Order 6 Rule 17, which came into force w.e.f. 1-7.2002 would not apply to a suit filed earlier to that date. He has submitted that the amendments necessary for determination of real question in controversy should be permitted. In this regard, he has cited a decision of a coordinate bench of this court in Lallu Vs. Nirdosh Kumar 2009 (4) CCC 384 (P&H). Learned counsel for the petitiones has further submitted that the petitioners had claimed the suit property to have been mortgaged vide mutation No. 186 and as learned trial court found the land mortgaged vide mutation No. 186 to have been redeemed vide mutation No. 565, the amendment is necessary because mutation No. 186 did not relate to the suit land and the mutation vide which the suit land was mortgaged was bearing No. 168. According to him, the amendment is, therefore, required for determination of real question in controversy between the parties and it should not have been declined. Learned counsel for the petitioners has further submitted that amendment of the pleadings is to be allowed on judicious evaluation of the facts and circumstances in which the amendment is sought. Civil Revision No. 7589 of 2009 6 .. According to him, the court dealing with an application for amendment of the pleadings would have to see if the amendment really sub-serves the ultimate cause of justice and would avoid further litigation. According to him, if it was so, then the amendment should be allowed. In this regard, he has placed reliance upon another judgment of a coordinate bench of this court in Vijay Kumar and others Vs. State Bank of India 2006 (2) RCR (Civil) 173. The last decision on which learned counsel for the petitioners has placed reliance is reported as Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. 2007 (2) RCR (Civil) 830. Learned counsel for the respondents has submitted, on the other hand, that despite the defendants pleading in their written statement that the land mortgaged vide mutation No. 186 had been redeemed vide mutation No. 565, the pleadings of the plaintiffs still reaffirmed their earlier plea in the replication. According to him, the suit was filed in the year 2001 and the plea that the land mortgaged vide mutation No. 186 was redeemed vide mutation No. 565, was taken in the written statement filed at the earliest. According to him, instead of making efforts to amend the plaint at that stage, the plaintiffs sought to controvert the plea of the defendants and reiterated their stand that the land mortgaged vide mutation No. 186 was not redeemed. He has further submitted that even while filing the appeal, no application for amendment was filed. According to him, rather an application for withdrawal of the suit was filed in which it was claimed that the suit suffers from technical defects on account of which, it would fail without being decided on merits. He has further submitted that the said Civil Revision No. 7589 of 2009 7 .. application was dismissed by learned Additional District Judge, Rewari and the revision petition filed by the plaintiffs-appellants was dismissed on 16.9.2009 by this court. It is further submitted by him that thereafter, application for amendment was filed which would require de novo trial and should not be allowed. The case of the plaintiffs has been that the suit land over which they and proforma defendants No. 27 to 36 have been in possession as mortgagees, was mortgaged by predecessor-in-interest of defendants No. 1 to 26 in favour of Bishna vide mutation No. 186 dated 20.6.1899 for a sum of Rs.11/- and that till the date of filing of the suit, the same was not redeemed and, consequently, the plaintiffs became owners of the suit property. The amendment sought is specified in paragraph No. 5 of the application, which has been extracted above. The plaintiffs do not seek to change the mutation number, date of mortgage or the mortgage money secured thereby. In the absence of the vital pleas regarding the date of mortgage, etc. the amendment would be meaningless. The date pleaded earlier i.e., 20.6.1899 cannot be taken as the date of mortgage, sought to be pleaded by way of amendment. Although, during arguments, learned counsel for the petitioners has submitted that the land in question was mortgaged vide mutation no. 168 instead of 186, the said plea is also not sought to be incorporated in the plaint by way of the amendment. So, the very plea of mortgage of the suit property is rendered vague and the suit for the relief on this vague plea would not be maintainable. Amendment of the pleadings has to be allowed and particularly Civil Revision No. 7589 of 2009 8 .. in the suits brought before 1.7.2002, if that would help the court in determining the real question in controversy between the parties. However, a party, who is quite negligent in seeking the amendment, cannot be allowed to do so. The defendants, to begin with, came with the plea that the property mortgaged vide mutation No. 186 was redeemed vide mutation No. 565. The plaintiffs still did not care to examine the revenue record to find out the true facts and persisted in their claim that the land in question was mortgaged vide mutation No. 186 on 20.6.1899. Thereafter, the evidence was led and suit was dismissed. The plaintiffs filed appeal against the judgment and decree of learned trial court without simultaneously applying for any such amendment. The plea sought to be raised by way of amendment is also very vague. Such a party trying to incorporate a vague plea by way of amendment without coming round and admitting that the land in question was not mortgaged vide mutation No. 186, cannot be helped. To top it all, the plaintiffs still maintain in the application for amendment that the land mentioned in mutation No. 186 is different from the land covered by mutation No. 565. If it is so, then the plaintiffs did not agree with the finding of learned trial court and there is no justification for amendment of the plaint. The amendment can be allowed only if the party claiming the same comes with the plea that the earlier plea had been incorrect and had been taken without knowledge of the true facts. Therefore, even if the petitioner is not required to satisfy the court on the requirement of the proviso to Order 6 Rule 17 CPC for the amendment to be allowed, he is not entitled to the amendment of the Civil Revision No. 7589 of 2009 9 .. plaint. The decision in Usha Balashaheb Swami's case (supra) does not help the petitioners. Besides highlighting the difference with regard to the principles governing amendment of the plaint and written statement, no rule of law is laid down in this case, under which a person like the petitioner can be allowed to amend the plaint. For the aforesaid reasons, the decision of coordinate benches of this court in Lallu's and Vijay Kumar's cases (supra) also have no application to the facts of this case. Therefore, the revision petition is found to be without merit and is dismissed. (VIJENDER SINGH MALIK) JUDGE December 16, 2011 som