Dubey v. Raj Kumar

14. It is therefore submitted that in view of the foregoing submission the instant petition may be allowed and the impugned order may be set aside. (on behalf of the respondent)

15. Per Contra, the learned counsel appearing on behalf of the respondent submitted that the instant revision petition against the impugned order dated 25th February 2021 is not maintainable and ought to be dismissed outrightly as the evidence of the petitioner and her husband has already been taken on record during the course of cross examination and no such facts were raised or suggested by the petitioner.

16. It is submitted that the facts on the basis of which the petitioner is seeking amendment is in fact a belated thought, since the petitioner is mala fidely alleging the same under the garb of mistake of her previous counsel.

17. It is contended that as per the proviso of the Order VI Rule 17 of the CPC, the burden to proof of whether the due diligence has been exercised on the part of the party seeking the amendment after the commencement of the trial is on the petitioner in the instant case and the petitioner has not exercised the due- diligence as envisaged in the proviso of the Order VI Rule 17 of the CPC.

18. It is submitted that in the event that the application filed by the petitioner under Order VI rule 17 of the CPC is allowed, the nature of the suit would stand modified, which is impermissible as per the law and hence, the instant petition ought to be dismissed by this Court.

19. Hence, in view of the foregoing submissions, the respondent seeks that this Court may dismiss this petition thereby, upholding the impugned order.

ANALYSIS AND FINDINGS

20. The matter was heard at length with arguments advanced by the learned on both sides. This Court has duly considered the factual scenario of the matter, judicial pronouncements relied on by the parties and pleadings presented by the learned counsel of the parties.

21. Before delving into the technical paraphernalia of the issues raised before this Court, it is apposite for this Court to analyze the impugned order dated 25th February 2021, the same is reproduced herein: “ Heard on the said application. The application in hand was filed as on 30.07.2019 when the matter had already reached the stage of final arguments. By way of application in hand, it is tried to bring on record that the suit property/land in dispute is/was infact land of Gram Sabha and not the land of ancestors of the contesting parties. The suit was filed way back in the year 2016 and no sort of proceedings alleging therein or showing the defense on these lines nowhere appeared. Even during the course of PE or DE, nothing such was suggested. The application in hand, thus, not only highly belated but is also a tool to protract the trial of the case which otherwise had reached the stage of final arguments in mid 2019. Accordingly, the application in hand is liable to be disposed of as dismissed.”

22. This Court shall now refer to the amended portion of the petition which the petitioner wants to incorporate and the same is as follows: “That the suit property/land in dispute is the land of Gram sabha and not the ancestral or any self-acquired property of the great-grandfather of the plaintiff and defendant No.1 and the aforesaid fact can be duly reflected from the fard of the Suit Property. That it is relevant to point out here that the great-grandfather of the plaintiff and the defendant No.1 was residing in the suit property/land in dispute by way of adverse possession and thereafter the further legal heirs including both the parties are living in the capacity only by way of adverse possession and not as the sole and absolute owners of the same. The copies of relevant documents in this regard viz. a copy of Fard in the name of Sh. Maan Singh, S/O Sh. Mahu Singh, copy of water bill in respect of the suit property depicting the name of Sh. Man Singh, Copy of Aadhar Card, Ration Card, Gas Connection, Bank Passbook are enclosed herewith for the kind perusal of this Hon‟ble Court.”

23. The instant petition has been filed under Section 115 of the CPC, whereby, the petitioner has sought the revision of the impugned order since it has been alleged by her that the same carries errors of jurisdiction. Therefore, in order to adjudicate the issues of the matter in hand, it is pertinent to understand the context and legislative intent behind the enactment of Section 115 of the CPC. The said Section has been reproduced for reference hereunder:

24. Section 115 of the CPC, deals with the High Court‟s power of revision. Briefly stating, in a case which is not subject to appeal, the High Court is empowered to call for the records of the case decided by the Court below, and if the Court below has exercised a jurisdiction vested in it by law, or failed to exercise jurisdiction vested by law or acted with material irregularity, etc. in the exercise of its jurisdiction, the High Court may interfere.

25. Section 115 of the CPC invests all High Courts with revisional jurisdiction. It declares that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court wherein no appeal lies, to satisfy itself on three aspects; (i) that the order passed by the subordinate Court is within its jurisdiction; (ii) that the case is one in which the Court has power to exercise its jurisdiction; and (ii) that in exercising jurisdiction the Court has not acted illegally, that is, breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision.

26. The provision thus takes within its limited jurisdiction, the irregular exercise or non-exercise of it, or the illegal assumption of it. It is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. In other words, it is only in cases where the subordinate Court has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the jurisdiction of the High Court may be properly invoked.

27. The primary objective of Section 115 of the CPC, is to prevent subordinate Courts from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. It clothes the High Court with the powers to see that the proceedings of the subordinate Courts are concluded in accordance with law within the bounds of their jurisdiction and in furtherance of justice.

28. The term „jurisdiction‟ has not been defined in the CPC. The definition of the same has been defined by the Hon‟ble Supreme Court and various High Courts by way of judgments. The said term means „the power of a Court to hear and decide a case or to pass a certain order‟ and „the right or authority to apply laws and administer justice‟. The expression „jurisdiction‟ is a verbal cast of many colors, the adoptive definition of the same has to be interpreted subjectively, i.e., depending upon the nature of the facts and circumstances of each case.

29. It is a settled principle of law that the Courts below have the jurisdiction to decide the case, and in context of the provision of revision, even if the Court below decides the case wrongly, they do not exercise their jurisdiction illegally or with material irregularity. In N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras [(1948-49) LR 76 IA 67], the Privy Council observed the following: “Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law.”

30. The above quoted observations made by the Privy Council have been approved and affirmed by the Hon‟ble Supreme Court and this Court in a number of cases such as cases titled Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, (1964) 3 SCR 495], Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, (1964) 5 SCR 157] and D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh, (1969) 3 SCC 807. The settled law is that there is a distinction between the errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said court, and errors of law which have no such relation or connection.

31. Similarly, in case titled as Pandurang Dhondi Chougute v. Maruti Hari Jadhav, (1966) 1 SCR 102, this Court held as follows: “The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of jurisdiction is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on those pleas in favour of the party raising them would oust the jurisdiction of the court and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under Section 115.

32. The scope and extent of the revisional powers of this Court has been discussed in depth in the foregoing paragraphs. Before proceeding to test the legality of the impugned order, it would be appropriate to refer to the nature, scope and object of the law settled by the Courts with regards to Order VI Rule 17 of the CPC. At this juncture it is relevant to discuss the proviso of Order VI Rule 17 of the CPC, which is reproduced as under: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial".

33. This Court is of the view that where the amendments are sought for a mere purpose of clarifying the averments which are pre-existing in the plaint, the same has to be allowed except when it is sought to make a new addition and for that purpose the law as laid down that it is the duty of the Court to arrive at a conclusion by reading the entire plaint as a whole. The said principle has been stated by the Hon‟ble Supreme Court in a catena of judgments and reaffirmed in the judgment passed in B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712.

34. The aforesaid power of the Court, however, is subject to a rider put by proviso to Order VI Rule 17 of the CPC, which provides that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought, before the commencement of the trial. In Salem Advocate Bar Association, Tamil Nadu V. Union of India & Ors., (2005) 6 SCC 344, the Hon‟ble Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial.

35. The purpose of Order VI Rule 17 of the CPC, is that all the substantial facts and necessary particulars must be stated in the pleadings. The object of the rule states that the Court should evaluate all the merits of the matter presented before it and therefore, consider allowing such vital amendments to accurately determine the primary issue in dispute between the parties in question.

36. Ultimately, the duty of the Courts is to administer justice between the parties involved, rather than to inflict punishment upon them. The Courts are empowered to allow amendments or modifications to the pleadings, in order to serve the broad objective of ensuring comprehensive adjudication for all the parties. The provision of Order VI Rule 17 of the CPC, serves the purpose of advancing the objectives of justice rather than defeating them.

37. The Hon‟ble Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595, discussed the tests laid down for allowing amendment of a plaint and observed as under:

(ii) North Eastern Railway Admn. v. Bhagwan Das

[(2008) 8 SCC 511], at para 16:

(iv) Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC

385], at paras 15 & 16: (SCC pp. 392-93)

40. Order VI Rule 17 of the CPC, consists of two parts, wherein, the first part is discretionary (may) and leaves it to the Court to order amendment of the pleading. The second part is imperative (shall) and enjoins the Court to allow all the amendments which are necessary for the purpose of determining the real question in controversy between the parties.

41. The above stated principles make it clear that the Courts have ample power to allow an application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determining the real question in controversy between the parties.

42. Now adverting to the facts of the instant petition. The petitioner has filed certain documents alleging that the suit property is the land of Gram Sabha and is neither ancestral property nor self-acquired property of the great-grandfather of the parties. It is further contended by the petitioner that the great-grandfather of the petitioner‟s husband and the respondent were residing in the suit property by way of adverse possession. Therefore, there is no sole ownership of either party to the suit property.

43. The petitioner has also annexed a copy of „Fard‟ in the name of late Sh. Maan Singh, copy of water bill of the suit property in the name of late Sh. Maan Singh, Copy of Aadhar Card with the address of the suit property, Ration Card with the address of the suit property, Gas connection with the address of the suit property, as well as the bank passbook with the address of the suit property.

44. This Court is prima facie of the view that the aforesaid amendments of pleadings satisfies twin conditions as laid down by the Court i.e., firstly, there is no injustice to be caused to the other since, the ownership of the suit property is an important fact which shall be disclosed before the Court and such a fact cannot cause any prejudice to any parties. Secondly, the amendment is necessary for the purpose of determining the real issue in dispute between the parties since, the parties have a dispute with regard to the ownership of the property and the fact that the suit property is owned by the Gram Sabha is a fact which is a crucial for the learned Trial Court in adjudicating the matter between the parties.

45. This Court is of the opinion that if this Court allows the amendments, the other party will not be placed in the same position but the amendment would not cause him an injury which could not be compensated in terms of costs. Though there is a delay on the part of the petitioner in amending its plaint but such an amendment would amount to merely an irregularity and is such any injury which can be compensated by of cost to the respondent.

CONCLUSION

46. In view of the above discussion of facts and law for the purposes of adjudication of the instant revision petition, the petitioner has been able to make out a case that requires interference of this Court with the impugned order by way of exercising the revisional jurisdiction under Section 115 of the CPC.

47. This Court is of the view that there is merit in the propositions put forth by the petitioner and for the proper adjudication of the suit before the learned Trial Court, the amendment sought by the petitioner must be allowed in accordance with the law. It is held that the learned Court below erred in appreciating the facts of the application filed by the petitioner under Order VI Rule 17 of the CPC. Accordingly, this Court by way of instant revision petition directs the learned Trial Court to allow the amendment of the plaint.

48. In view of the above discussions of facts and law, this Court set aside the impugned order dated 25th February 2021, passed in CS No, 3263/2016, by the learned ADJ-01, East, Karkardooma Courts, Delhi, in case titled as “Raj Kumar Vs Manoj Kumar & Anr.”

49. Accordingly, this petition is thus allowed and the learned Trial Court is directed to consider the amendment to the pleadings.

50. In view of the afore said observations, the present petition stands disposed of along with pending applications, if any.

51. The judgment be uploaded on the website forthwith.

JUDGE DECEMBER 15, 2023 Dy/db/ds