Ishar And Others v. Sudesh Kumar And Another

Pritam Singh Pattar, J.:— This is an appeal filed by Ishwar and others defendant-appellants against the judgment dated 11th April, 1969, of Shri Banwari Lal Singal, I Additional District Judge, Karnal, by which he dismissed their appeal against the judgment dated 14th August, 1967, of the Subordinate Judge First Class, Karnal, who passed a decree for possession by pre-emption of the land on payment of Rs. 17,309.50, in favour of the plaintiff against them i.e defendants.

2. The facts of this case are that the land in suit measuring 126 Kanals 16 Marlas situated in the area of village Bhir Amin tehsil Karnal belonged to Dial Chand who sold the same to the defendant-appellants for Rs. 15,374.50 on the basis of a registered sale deed, dated 29th April, 1964. The plaintiff Sudesh Kumar who is the son of the vendor filed a suit for possession by pre-emption of this land on payment of Rs. 11,374.50 alleging that he being the son of the vendor had a preferential right of pre-emption to that of the vendees and that the sale took place for Rs. 11,374.50 and the remaining amount was entered in the sale deed fictitiously to deter the pre-emptors. The defendants contested this suit. It was alleged that the plaintiff was not the son of the vendor and had no right to file a suit. They averred that the suit was barred by limitation and that it was a benami suit and the plaintiff was being financed by the vendor for maintaining the suit which may be dismissed. The sale was alleged to have taken place for Rs. 15,374.50. They claimed Rs. 2000/- spent by them on improvements made by them. Besides this they claimed expenses incurred by them on the execution and registration of the sale deed. On the pleadings of the parties the following issues were framed by the trial Court:—

“1. Is the suit barred by limitation?

2. Is the suit benami? If so, to what effect?

3. Whether the suit is not maintainable for the reasons mentioned in paras 3 and 4 of the preliminary objections?

4. Whether the plaintiff has got superior right of pre-emption?

5. Whether the sale price was fixed in good faith and paid actually? If no, what is the market value of the land in dispute?

6. In case of decree, whether the defendants are entitled to stamp and registration charges? If so, at what amount?

7. Whether the defendant made any improvements in the land in suit? If so, to what amount and to what effect?

8. Whether the plaintiff is estopped from bringing the suit on account of his conduct?”

3. The Subordinate Judge held issues Nos. 1, 2, 3, 7 and 8 against the defendant-vendees. Issues Nos. 5, and 6 were held in favour of the vendees while issue No. 4 was decided in favour of the plaintiff. As a result decree for possession by pre-emption of land was passed in favour of the plaintiff against the vendees as stated above. The defendants filed an appeal in the Court of the District Judge, Karnal and it was dismissed by the Additional District Judge, Karnal, on 11th April, 1969. Feeling dissatisfied the vendees-defendants filed this second appeal.

4. The decision of the lower appellate Court was not contested before me on all the issues framed in the case excepting issue No. 2. Besides this it was alleged that the trial Court wrongly dismissed their application for amendment of the written statement to raise a new plea that the vendor and the plaintiff constituted a joint Hindu family and the land in suit was joint Hindu Family property and the lower appellate Court also wrongly disallowed this appeal.

5. Issue No. 2 on which the decision of the lower Court is contested is thus—“Is the suit benami? If so, to what effect?”. In the written statement, in para 2 of the preliminary objection, the defendants had alleged that the suit was benami and the plaintiff was being financed by the vendor for maintaining the suit and the same may be dismissed. The defendants did not lead any evidence worth the name on this issue. The learned counsel for the appellants referred me to the statement of Sudesh Kumar plaintiff as P.W 4, recorded on 25th February, 1967, by the trial Court. He stated in cross-examination that he came to know about the sale in suit about two years ago and that thereafter he handed over Rs. 250/- or Rs. 300/- to his uncle who came to Karnal from Delhi and filed the suit on his behalf. His uncle engaged the lawyer. He again paid Rs. 200/- to his uncle for payment to the lawyer and he, i.e the plaintiff, personally deposited Rs. 3,075/- as one-fifth of the sale amount on 27th May, 1965. The plaintiff further stated that he is in service and since April, 1966, he is drawing a salary of Rs. 300/- per mensem. He is unmarried. These facts did not show at all that the suit is benami.

6. In Jagat Singh v. Jai Dev . 1968 70 P.L.R 365., it was held as under:—

“If the pre-emptor has no funds with him, he is entitled to borrow the same from any quarter and on any terms and fight out the litigation. If he either takes the financial assistance of somebody else or help in the day-to-day proceedings in the Court, it could not be said that there was any legal prohibition in his doing so. Such a suit cannot be termed benami meriting dismissal. When a person either before or after the filing of the pre-emption suit, transfers his right in the property in favour of another person, in that contingency it would be held that he was acting benami for the transferee.”

7. To the same effect was the law laid down in Ram Saran v. Kanwal Singh . 1964 66 P.L.R 988.. The law laid down in these authorities applies to this case. There is no proof that the plaintiff instituted the suit benami for the vendor. The decision of the lower Court on issue No. 2 is affirmed and the contention of the counsel for the appellants is repelled.

8. The defendant-vendees made an application under Order 6 rule 17 read with section 151 of the Code of Civil Procedure on 31st March, 1967 in the trial Court for amendment of the written statement on the ground that the plaintiff in his statement admitted that he and his father constituted joint Hindu family and he lived with his father at Delhi and, therefore, they may be permitted to raise the plea that the property in suit was joint Hindu family property and the plaintiff had no right to bring this suit. This application was contested by the plaintiff stating that the same maybe rejected as the proposed amendment would introduce new and inconsistent case and there will be a de novo trail of the case. The plaintiff urged that in the written statement they had alleged that the plaintiff was the son of the vendor and this application was made mala fide to prolong the decision of the suit. The Subordinate Judge hearing arguments of the parties dismissed this application by order dated 8th May, 1967. Against this order the defendant-vendees preferred Civil Revision No. 404 of 1967 in this Court which was dismissed by S.B Capoor Acting C.J on 14th July, 1967, and the orders passed were thus “dismissed”.

9. The counsel for the plaintiff-respondent raised an objection that since the revision petition against this order disallowing amendment had been dismissed by the High Court, therefore, the order of the Subordinate Judge dated 8th May, 1967, cannot be attacked in second appeal. In Hari Ram v. Niranjan Lal etc. . 1971 Curr. L.J 208., it was held by a Division Bench of this Court that an order allowing or disallowing an amendment of the pleadings is revisable by the High Court under section 115 Code of Civil Procedure. Admittedly no appeal against such an order lies.

10. In Roop Kishore v. Firm Raghbir Singh Baboo Ram . I.L.R 1970 1 Pb & Hary 533., it was held as under:—

“If however, the earlier decision is not given on the merit of the controversy, and if the Court merely declines to go into the merits at the earlier stage either because of an alternative remedy being available or because it is in the discretion of the Court to go into the merits of the matter at the stage or not, the mere refusal by the Court to hear the matter or to entertain the petition or the mere declining of the Court to decide the matter at the earlier stage for any such reason will not bar the hearing of the matter in controversy at a later stage where it can otherwise be appropriately beard.”

11. In Daryao v. State of U.P . AIR 1961 SC 1457., it was held as under:—

“If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar: if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32, (Constitution of India).”

12. In the instant case the Subordinate Judge passed the order on 8th May, 1967, and the revision petition was filed in the High Court on 25th May, 1967, and thus there was no delay in filing the revision petition. No appeal lay against this order of the Subordinate Judge and therefore it can be assumed that the order dismissing the revision petition in limine was passed after considering the merits. However, in view of the law laid down in the aforesaid authorities of the Supreme Court and the Punjab and Haryana High Court it is held that the order of the Subordinate Judge disallowing amendment can be attacked in this appeal.

13. Order VI rule 17 of the Code of Civil Procedure, lays down that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

14. In the instant case in the written statement the vendees had pleaded that the plaintiff is not the son of the vendor and that the suit was filed by the plaintiff as a benamidar for the vendor. The plaintiff in his statement as P.W 4 made on 25th July, 1967, had stated that he was living jointly with his father and they constituted joint Hindu family. However, he did not admit that the family owned any joint Hindu family property and that the land in suit was the property of the joint Hindu family. It is well-settled law that every Hindu family consisting of father and son is presumed to be joint but there is no presumption that a joint Hindu family owns any property. Thus the pleas which the defendants wanted to take in the written statement by making the proposed amendment would raise a new and inconsistent case with their existing pleadings.

15. The learned counsel for the appellants relied upon Raghvir Parshad etc. v. Chet Ram . 1971 Curr L.J 612., wherein it was held as under:—

‘That, however, negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated for by costs.

A plaintiff may add a new cause of action and the defendant may add a new defence. Even a new case may be allowed to be introduced.

“Thus the mere fact, that the cause of action has been changed, is no ground per se for disallowing the amendment.”

16. In this ruling plaintiff No. 1 along with his sister laid a claim to the house on the basis of inheritance. They came to know about the execution of the will subsequently which will was in existence on the day the suit was brought and they applied for amendment of the plaint to base their claim on the will also and the amendment was allowed.

17. In Smt. Tara Wati… v. Sees Ram…. . 1966 68 PLR 406., it was held as under:—

“That in a suit for cancellation of a gift deed if in the application for the amendment of the plaint there is no question of any new claim being made and all that has been sought to be introduced is another ground for attacking the deed of gift, the amendment can be allowed even after the expiry of period of limitation for the suit.”

18. To the same effect was the law laid down in Watkins Myor & Company, Jullundur City v. Registrar of Trade Marks, Bombay . 1952 54 PLR 176., Har Sarup Gupta v. S. Aggrowal Khushi Ram . AIR 1960 Pb. 653., Pirgond Hongonda Patil v. Kalgonda Shidgonda Patil . AIR 1957 SC 363., and in L.J Leach and Co. Ltd. v. Jardine Skinner and Co. . AIR 1957 SC 357.. In all these authorities it was observed that amendment may be allowed even if there was a delay or carelessness on the part of the plaintiff or defendant and that there will be no injustice to the opposite side who can be compensated by costs. In none of these cases a new and inconsistent case was allowed to be introduced by the proposed amendment.

19. In Sardarni Gulwant Kaur v. Mohinder Singh etc. . 1972 Curr L.J 289., the facts were that a suit for possession of the disputed land was filed by Mohinder Singh and Gurmel Singh on the basis of a registered sale deed executed in their favour on 18th June, 1968 by the husband of the defendant Gulwant Kaur. She resisted the suit on the ground that the disputed property had been gifted to her on 13th April, 1950, and it was an oral gift accompanied by possession and she had been in continuos possession of the land through her son Madanjit Singh since April, 1956. After the conclusion of the evidence led by the plaintiff in the affirmative and the evidence of the defendants and before recording plaintiffs' evidence in rebuttal an application was made by the defendant in the trial Court under Order 6 rule 17 of the Code of Civil Procedure to amend her written statement to add an alternative defence to the claim of the plaintiff about her being not liable to deliver possession to the plaintiffs on the ground that even if she was not able to prove the oral gift she had become absolute owner of the property by adverse possession since April, 1956. The Sub Judge dismissed this application of the petitioner. Against this order revision petition was filed in this Court and on these facts it was held as under:—

“That the new plea sought to be added is not at all inconsistent with the original plea, but is merely sought to be taken up in the alternative. Consideration for allowing an amendment of plaint in a pre-emption suit are entirely different.

The new plea sought to be raised is not destructive of the original plea and both the pleas could have been taken up in suit originally in the alternative.

And that the defence under the original plea as well as under the new plea sough, to be introduced by the amendment is that the petitioner is the owner of the land and is in possession of the same since April, 1956, to the exclusion of her husband. It cannot, therefore, be said that there is any change of the front in defence on the part of the petitioner in the present case.”

20. This authority relied upon by Mr. S.P Goyal learned counsel for the appellant does not help him. In this authority it was further held that inordinate delay in making an application for amendment is no ground for a valid consideration for deciding the application on merits. But no new and inconsistent pleas can be allowed to be raised by the amendment. The view taken in the above-mentioned authorities relied upon by the learned counsel for the appellants do not cover this point in dispute i.e whether a new and inconsistent plea can be allowed to be introduced by way of amendment of written statement.

21. The learned counsel for the respondents relied upon A.K Gupta and sons Ltd. v. Damodar Vally Corporation . AIR 1967 SC 96., wherein it was held:

“The expression cause of action in this context does not mean every fact which is material to be proved to entitle the plaintiff to succeed. The expression only means a new claim made on a new basis constituted by new facts. The words new case means new set of ideas. Thus no amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time.

In the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation.”

22. In Mangat Rai etc. v. Mohan Lal . 1971 Curr L.J 633., it was held as under:—

“That application under Order 6 rule 17, Civil Procedure Code, was made in the present case nearly two years thereafter. There is no justification for this delay and the only inference that can be drawn is that even after the matter had been clarified by the Full Bench decision, the tenant did not care to apply for an amendment and this is a case in which the inference of this plea having been waived is inescapable.”

23. In Kundan Lal Verma… v. Smt. Sushila Devi…. . 1971 Curr L.J 1024., it was held as under:—

“That the general rule in the matter of allowing amendment of pleadings is that and amendment by means of which a party seeks to set up a new case or a new cause of action (particulary when a suit on the new cause of action would be barred) is not permitted. The amendment sought to be made in the present case was certainly of a type which is barred under the rule. It is not an amendment which would merely open a different or additional approach to the facts already stated but is one which changes the nature of the defence or, in other words, sets up a new case.”

24. In Shriram Sardarmal Didwani v. Gourishankar Joharmal* . AIR 1981 Bom. 136., it was held:—

“In the case of an amendment of the plaint, an amendment to the plaint should not be granted if it would convert the suit or the claim into one of a different and inconsistent character. In the case of an amendment of the written statement, an amendment should not be granted if it would convert the defence into another or a different and inconsistent character. An amendment to the written statement can never affect the nature of the suit; it can only alter the nature of the defence.”

25. To the same effect was the law laid down in Rameshwar Dutt v. Ram Kishan . 1963 65 PLR 1016., Fazal Nur v. Bibi Rani . AIR 1930 Lah 278 2. and in The Municipal Corporation of Greater Bombay v. Lala Pancham . AIR 1965 SC 1008.. The law laid down in all these authorities applies to this case.

26. In view of the law laid down in the aforesaid authorities my findings are that the general rule of amendment of pleadings is that a party is not allowed amendment to set up a new case or a new cause of action. The words new cause of action means a new claim made on a new basis constituted by new facts. The words “new case” mean new set of ideas. In the case of an amendment of plaint it would not be granted if it would convert the suit or the claim into one of different and inconsistent character. In the case of an amendment of the written statement the amendment should not be granted if it would convert the difference into another or a different and inconsistent character. Applying these principles to the present case I am of the considered view that the amendment application of the defendant-appellants to amend their written statement was rightly rejected by the subordinate Judge.

27. In the instant case in the written statement the defendants had pleaded that Sudesh Kumar plaintiff was not the son of the vendor and that he was a Benamidar for the vendor. Now they want to introduce altogether a new and inconsistent case to the effect that the plaintiff and the vendor constitute joint Hindu family and that the land in suit was the property of joint Hindu family and that the Plaintiff, therefore, has no right of pre-emption. The evidence of both the parties in this case had been closed on 25th February, 1967, and the case was adjourned for arguments and the application for amendment was made on 31st March, 1967. It appears that after seeing that the plaintiff was succeeding in the case this application was made with a view to prolong the decision of the case. For the reasons given above it is held that amendment of the written statement cannot be allowed to raise a new and inconsistent case. The order of the Subordinate Judge disallowing the amendment was correct and is affirmed.

28. No other point was urged before me. There is no force in this appeal and the same is dismissed with costs.

29. Appeal dismissed.