IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.410 of 1998. Judgment Reserved on: 08.09.2008. Date of decision: 17.09.2008. Om Parkash & Another …Appellants Versus Ashok Kumar & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.Ajay Sharma, Advocate. For the Respondents: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. Dev Darshan Sud,J. This is the defendants’ second appeal against the judgment of the two Courts below decreeing the suit of the plaintiffs-respondents for declaration to the effect that they have become owners of the suit land by efflux of time. The case set up by the plaintiffs is that the suit land was originally owned by Smt. Bhajani and she mortgaged it on 8.5.1931 in favour of S/Shri Daya Chand and Ram lal. The plaintiffs were the successors-in- interest of the mortgagee and the defendants of Smt.Bhajani mortgagor. A decree for declaration was 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 sought that the plaintiffs have become owners on the suit land by efflux of time as the mortgage has not been redeemed within the time allowed by law. The suit was contested on a number of grounds including jurisdiction, cause of action and maintainability. The defendants claimed tenancy under the mortgagees and with the commencement of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the `Act’) they claim statutory ownership by virtue of the provisions of the Act as aforesaid. They did not dispute the status of the plaintiffs as mortgagees. The suit was dismissed by the Court by judgment dated 20.10.1993. The plaintiffs appealed and the case was remanded by the learned District Judge, Dharamshala. The order of remand reads:- “7. The following points arise for determination in the present case:- 1. Whether the findings of the learned Court below are justifiable under the land and on the face of the material brought on record by the parties? 2. Relief. 8. For the reasons to be recorded herein-in-after, my findings on the above points are as under:- FINDINGS Point No.1: No Relief : The appeal allowed as per operative part of the judgment. 3 REASONS FOR FINDIGNS Point No.1. 9. At the very out-set, it may be stated that the impugned judgment and decree cannot be sustained and the same is liable to be set- aside. A perusal of the written statement shows that the original mortgage created by Smt.Bhajni has been admitted by the defendants. The case set up by the defendants in the written statement is that they are in possession of the land in dispute as non-occupancy tenants and have become owners there of by operation of law on coming into force the H.P. Tenancy and Land Reforms Act, 1972. It is not their case that they have succeeded to the land in dispute both to the rights of mortgagor and the mortgagee. The suit, which has been dismissed by the learned Court below on the question of merger of the rights of mortgagor and that of mortgagees, was not the case of the defendants. The learned Court below has, therefore, made out a new case for the defendants. Besides, inspite of the specific averment contained in the written statement that the defendants are coming in possession of the land in dispute as non occupancy tenant and have acquired ownership rights 4 in respect thereof, under the H.P. Tenancy and Land Reforms Act, 1972, no issue on such pleadings has been framed by the learned Court below. In the absence of issue on the plea set up by the defendants, no evidence qua tenancy could be produced. There has, therefore, been miscarriage of justice in the present case. The findings of the learned Court below are as such liable to be set aside. Relief: 10. As a result, the present appeal is allowed, the impugned judgment and decree is set aside and the case is remanded to the learned Court below for disposal afresh on the basis of the following issues: 1. Whether the defendants are in possession of the land in dispute, as non-occupancy tenants and have become owners there-of, under the H.P. Tenancy and Land Reforms Act, 1972? OPD. 2. Whether the plaintiffs have become owners of the land in dispute, by afflux of time, on the failure of the defendants to redeem the mortgage within the stipulated period of limitation? OPP. 3. Whether this Court has no jurisdiction as alleged? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 11. The learned Court below will afford opportunity to the parties 5 to lead their further evidence, as they may wish on the issues frame above and thereafter, proceed to decide the case afresh in accordance with law. No orders as to costs. The parties are directed to appear before the learned Court below on 9.8.1994. The record of the learned Court below alongwith a copy of this order be returned forthwith well before the date fixed, while the record of this Court, after due completion, be consigned” After remand the case was taken up for a decision afresh by the learned trial Court which decreed the suit of the plaintiffs holding that the plaintiffs are owners in possession of the suit land. An application under Order 6 Rule 17 of the Code of Civil procedure was filed by the defendants praying that they be allowed to amend the plaint by incorporating certain amendments on the grounds that:- “a) In 2nd line of para 1 after words Defts “the words” “wrongly shown to be” are required to be added and in the 5th line para 1 after the words recorded as such the word, “otherwise, and again in the same line after the words the Defts the words, “would” is to be added and at the end of para 1 of the Written Statement the 6 `words’, as the Defts have succeeded the entire property of Smt.Bhajani and Daya Chand who were the original mortgagor and mortgagee respectively”. b) In 3rd line of para 2 of the Written Statement after word mortgagee, the words “but the entries in the column of ownership so far showing the Plffs as mortgagees are incorrect” are required to be added and at the end of this para the words, “in case the inheritance of mortgagor and mortgagee rights by the Defts is not proved are required to be added. c) In 3rd line of para 3 of the Written Statement after the words Plffs the words, “but the Plffs have not inherited any thing from their predecessor- in-interest Shri Daya Chand who bequeathed his entire property in favour of the Defts and at the end of this para the words, “And have also become owners in possession due to merger of rights of mortgagor and mortgagee in them.” d) In 3rd line of para six of the Written Statement after the words, as tenant, the words, “and as owner by merger” are 7 required to be added in 5th line after the words tenancy Act the words, “and otherwise also” are required to be added”. This application was resisted by the plaintiffs. The learned trial Court rejected the application holding therein that ample opportunity had been granted to the defendants to put forth their defence; the delay was prejudicial to the case of the plaintiffs as a new case was being set up. This rejection of the amendment when urged before the learned appellate Court was also rejected affirming the grounds on which the learned trial Court had dismissed the application. The Court also found that the prayer made was not bonafide. The case set up by the defendants was one of ownership on the basis of title under the Act and merger of rights. On the question of bonafides the Court holds that the defendants were putting forth their case in driblets and there was nothing on the record to suggest that the grounds which were urged in support of the amendment were bonafide. This appeal was admitted on substantial question of law No.2 which reads: 1. Whether both the Learned Courts below mis-read and mis-appreciated the facts and law while dismissing application under Order 6 Rule 17 preferred by the defendants, thereby vitiating the impugned judgments and decree? 8 Learned counsel appearing for the appellants places reliance on the judgment passed by this Court in RSA No.364 of 1994, titled: Kesari Devi vs. Kishan Chand and Another, decided on 15.7.2002, holding that where a right has accrued in favour of the party either on the basis of the original pleadings which are proposed to be amended or where there are other ample grounds, the amendment may be refused only for good cause. Placing reliance on the decision of the Supreme Court in Smt.Ganga Bai vs. Vijay Kumar and Others, (1974)2 SCC 393, M/s.Ganesh Trading Co. vs. Moji Ram, (1978)2 SCC 91, B.K.N. Pillai vs. P.Pillai & Anr., JT 1999 (10) SC 61, holding inter alia that mere delay in filing the petition for amendment of the pleadings should be properly compensated by costs and an error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment. Reliance has also been placed on two other decisions of the Supreme Court, namely, Raghu Thilak D.John vs. S.Rayappan and others, (2001)2 SCC 472 and Dondapati Narayana Reddy vs. Duggireddy Venkatanarayana Reddy and others, (2001)8 SCC 115, holding that the principles governing amendment should be liberal and amendment cannot be rejected on the ground that the party has come to Court at a belated stage. Learned counsel for the appellants also places reliance on Commissioner of Income-tax, Poona 9 vs. Buldana District Main cloth Importers Group, AIR 1961 SC 1261, Harcharan vs. State of Haryana, AIR 1983 SC 43, Almu vs. Gusaoon, AIR 1977 HP 33, to submit that mere delay cannot be a ground for refusing amendment. Learned counsel appearing for the respondents relying upon the judgment of the Supreme Court in Heera Lal vs. Kalyan Mal & Others, (1998)1 SCC 278, urges that the amendment sought should be judged from the point of view as to whether it is necessary to determine the true controversy between the parties and that the plaintiffs being fully aware of the case was opposing the defendant in driblets and manipulating the process of law. The Supreme Court in Heera Lal’s case held:- “9. … … … … … … … … … … … … After three years the defendants by application under Order VI Rule 17 sought amendment of written statement by substituting paras 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that the plaintiff was stockist-cum- distributor. Such amendment was rejected by the trial court and the said rejection was affirmed by the High Court in revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench 10 of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. … … … … . 10. Consequently must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff’s case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view.” Learned counsel also placed reliance on the case of Mathia vs. Prem Lal and Others, (Civil Revision No.147(B) of 1991), 1992(2) Current Civil Cases 424, decided by this Court on 20.3.1992 to support his 11 contention that the amendment cannot be allowed as it sets out a totally new case. Defendants having admitted the status of the plaintiffs as mortgagee cannot now be allowed to turn around and urge a different ground. He submits that the conduct of the defendants is such that they are not disclosing the entire facts/complete defence and are fighting with the plaintiffs in driblets and are taking unfair advantage of the process of law. Having gone through the record, I do find that delay is not the only factor for rejecting the application filed by the defendants, petitioners herein. The application for amendment to say the least is terse and contains the oft quoted reasons for seeking amendment that the Petitioners-defendants are illiterate persons. This submission cannot be accepted from a litigant who has been fighting this case over a long period of time. It is the easiest thing to urge illiteracy to gain the sympathy of the Court. Even after remand, the defendants-petitioners remained silent for a period of more than one year before filing the present application. This shows the conduct of the party who appears otherwise a well versed litigant. I am not satisfied that the claim set forth is bonafide or that it is necessary for the adjudication of the controversy. In the facts and circumstances of the case I hold that the learned Courts below are correct in 12 rejecting the amendment application. This question is answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. September 17, 2008. (Dev Darshan Sud) (aks) Judge