1974 Supreme(P&H) 39

PUNJAB & HARYANA HIGH COURT
D.K.Mahajan, Bal Raj Tuli and C.G.Suri JJ.
Banta Singh Ganga Singh
Versus
Harbhajan Kaur
Letter Patent Appeal No. 385 of 1969,
Decided On : MARCH 6, 1974

Headnote:

PRE-EMPTION - AMENDMENT OF PLAINT - WHETHER THE LEARNED LOWER APPELLATE COURT WAS RIGHT IN ALLOWING THE PLAINTIFF-RESPONDENT TO AMEND HER PLAINT AT THE APPELLATE STAGE WHEN THE OBJECTION REGARDING THE SUIT BEING BAD FOR PARTIAL PRE-EMPTION WAS RAISED BY THE VENDEES-APPELLANTS IN THEIR WRITTEN STATEMENT AND THE PLAINTIFF-RESPONDENT, IN SPITE THEREOF, PERSISTED IN MAINTAINING, TILL THE SUIT WAS DISMISSED BY THE LEARNED TRIAL COURT, THAT ONLY 5 KOTHAS AND NOT 6 WERE SOLD BY THE VENDER TO THE VENDEES ?

Fact of the Case:

The plaintiff-respondent filed a suit for possession by pre-emption of 307 kanals 6 marlas of land along with 5 kutcha kothas and 1 pucca kotha against the vendees-appellants for a consideration of Rs. 38,605/- vide registered sale-deed dated August 20, 1964. The vendees raised a preliminary objection that the suit was bad for partial pre-emption. The plaintiff-respondent persisted in maintaining that only 5 kothas, according to the sale-deed, were sold and not 6. The trial court dismissed the suit on the ground that it was bad of partial pre-emption. The plaintiff-respondent filed an appeal which was accepted by the learned Additional District Judge, Karnal, on December 4, 1967. Along with the memorandum of appeal, an application for permission to amend the plaint, so as to mention 6 kothas instead of 5, was also filed. The learned Additional District Judge allowed the amendment of the plaint and decreed the suit in full. The vendees filed R.S.A. No. 1477 of 1967 in this Court which was partly accepted by Gurdev Singh, J., on May 8, 1969. The learned Judge held that the amendment had been properly allowed by the learned Lower Appellate Court, but the plaintiff-respondent was entitled to pre-empt the sale only to the extent of the share of her father therein and not the entire sale because she had no right to pre-empt the sale made by her uncles and grand-mother. Consequently, a decree for 1/6th of the sold property was passed against the payment of Rs. 6227/-, being the amount proportionate to the area of the property to which her right of pre-emption was found to exist. Against the judgment and decree of the learned Single Judge, the vendees filed the present appeal under Clause 10 of the Letters Patent to which cross-objections were filed by the plaintiff-respondent.

Finding of the Court:

The learned Lower Appellate Court committed an illegality in allowing the plaintiff to amend her plaint and as a result thereof decreeing her suit in full in appeal. For the same reasons, and I say so with respect, the learned Single Judge in the second appeal erred in holding that the amendment had been rightly allowed.

Issues: 1. Whether the learned lower appellate Court was right in allowing the plaintiff-respondent to amend her plaint at the appellate stage when the objection regarding the suit being bad for partial pre-emption was raised by the vendees-appellants in their written statement and the plaintiff-respondent, in spite thereof, persisted in maintaining, till the suit was dismissed by the learned trial Court, that only 5 kothas and not 6 were sold by the vender to the vendees ? 2. Whether the amendment of the plaint could not be allowed by the learned Lower Appellate Court, in view of the facts of this case, as stated above?

Ratio Decidendi: 1. The amendment sought for in the first appellate Court was not bona fide, particularly because the copy of the sale-deed in possession of the plaintiffs lawyer was never produced to show that therein only 5 kothas were mentioned and not 6, on the basis of which the plaint had been drafted. 2. No amendment of the plaint should be allowed if its effect is to take away a valuable right that has accrued to the opposite party by lapse of time. 3. The plaintiff cannot be allowed to amend his plaint if the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time.

Final Decision: Appeal accepted; suit of the plaintiff-respondent dismissed; parties to bear their own costs throughout.