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2019 Supreme(HP) 150
IN THE HIGH COURT OF HIMACHAL PRADESH
Vivek Singh Thakur, J.
Rajeev Kumar Singhal - Appellant
Vs.
Mukul Garh and Others - Respondents
Civil Miscellaneous Petition (Main) No. 557 of 2017
Decided On : 18-03-2019
Ashok K Tyagi, Adv., Satyen Vaidya, Adv., Vivek Sharma, Adv.
The main legal point established in the judgment is that the court has wide enough jurisdictions to allow the amendment of pleadings, even in cases where there has been substantial delay in filing the amendment application, as long as it serves the ultimate cause of justice and avoids further litigation.
Headnote:
Amendment - Civil Suit - CPC - Section 22 of the Hindu Succession Act, 1956, Section 4 of Partition Act, 1993 and Section 44 of Transfer of Property Act - [SUMMARY]
Fact of the Case:
The petitioner filed a civil suit seeking declaration that certain sale deeds were contrary to law and did not affect the preferential rights of the plaintiffs. The plaintiffs claimed their entitlement for acquisition of the property under Section 22 of the Hindu Succession Act.
Finding of the Court:
The court allowed the amendment sought by the petitioner, stating that the proposed amendment was imperative for proper and effective adjudication of the case and would not lead to injustice. The court also noted that the delay in taking the plea as proposed to be incorporated by way of amendment could not be attributed to the plaintiff.
Issues: The main issue was whether the proposed amendment should be allowed, considering the objections raised by the defendants.
Ratio Decidendi: The court held that the proposed amendment was bonafide and imperative for proper and effective adjudication of the case. It also emphasized that the amendment sought would not cause prejudice to the defendants and would help in avoiding multiplicity of litigation.
Final Decision: The court allowed the application for amendment and directed the parties to appear before the trial Court for further proceedings.
Vivek Singh Thakur, J.
Present petition has been preferred by the petitioner/plaintiff against the impugned order dated 7.11.2017 passed by learned Senior Civil Judge, Sirmaur District at Nahan, dismissing the application filed by the petitioner/plaintiff under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure (herein after referred to as "CPC" for short) for amendment in the plaint seeking insertion of new para 9(a) in the plaint in Civil Suit No. 159/1 of 2013/11, titled as Rajeev Kumar Singhal Vs. Mukul Garg.
2. I have heard learned counsel for the parties and perused the documents placed on record.
3. It is undisputed fact that petitioner/plaintiff along with performa respondents, being siblings of deceased Hari Saran S/o Krishan Chand S/o Kanshi Ram and defendant No. 2, being son of Sadhu Ram, S/o Kanshi Ram had inherited the suit property i.e. House situated on land comprising Khata No. 19/Khatauni No. 35, Khasra No. 982 measuring 105.82 Sq. meters situated at Hindu Ashram Road Mohal Naya Bazar, Nahan, District Sirmour, H.P., initially owned and possessed by their common ancestor Kanshi Ram . Defendant No. 2 had sold his share (half of suit property) to defendant No. 1 on 7.4.2010 vide registered sale deed No. 302 of 2010. Thereafter petitioner/plaintiff along with performa respondent No. 5/co-plaintiff Naveen Kumar had preferred civil suit (present matter) against defendants No. 1 and 2. However, during pendency of suit, defendant No. 1 had further sold his half share to defendants No. 3 and 4 on 30.3.2013 vide registered sale deed No. 253 of 2013, whereupon defendants No. 3 and 4 were also added as defendants and suitable amendment in the suit was carried out and finally a suit seeking declaration that sale deed No. 302 of 2010 dated 7.4.2010 executed by defendant No. 2 in favour of defendant No. 1 and sale deed No. 253 of 2013, dated 30.3.2013, executed by defendant No.1 in favour of defendants No. 3 and 4 are contrary to law and does not affect the preferential rights of plaintiffs and performa defendants and defendants No. 1, 3 and 4 are not entitled for joint possession or joint user of the common undivided family property in the shape of dwelling house of the plaintiff and defendant No. 2 with a consequential relief of permanent injunction restraining the defendants not to cause interference in possession of plaintiffs and performa defendants in the suit property and a relief of mandatory injunction seeking direction to defendants No. 1, 3 and 4 to execute the sale deed of half share in favour of plaintiff and performa defendants after receiving sale consideration of Rs.11,00,000/- is pending adjudication before the trial Court.
4. Plaintiffs are asserting their right on the suit property sold by defendant No. 2 on the basis of their preferential rights to acquire the same being a dwelling house belonging to undivided family and in the plaint direction has been sought to defendants No. 1, 3 and 4 for transferring the property in dispute in the names of plaintiff and performa defendants by claiming their entitlement for acquisition of the said property under Section 22 of the Hindu Succession Act.
5. Defendants No. 1, 2 , 3 and 4 have field their separate written statements, wherein besides other objections, common stand in all these written statements is that before entering into sale with defendant No. 1 and further sale in favour of defendants No. 3 and 4, plaintiffs had been contacted and asked by defendants to purchase the same and the sale deeds were executed only after refusal of plaintiff and performa defendants to purchase the same and plaintiffs were not ready and willing to purchase the said share at any point of time.
6. During pendency of the trial, when suit was listed for recording of evidence of remaining witnesses of defendants, plaintiffs had filed an application for amendment in the plaint to insert para 9(a) therein, to claim the right on the basis of Section 4 of the Par
