Adarsh @ Vishal Cheba vs Master Mohit Cheba and others

L.N. Mittal, J.—Defendant No. 2-Adarsh @ Vishal Cheba has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to challenge order dated 11.02.2012 Annexure P-4 passed by learned Civil Judge (Junior Division), Chandigarh thereby allowing application Annexure P-2 moved by respondents No.1 to 3/plaintiffs for amendment of plaint. Respondents No.1 to 3 have filed suit against Tripta Cheba-defendant No.1/respondent No.4 (since deceased), petitioner-defendant No.2 Adarsh @ Vishal Cheba, Indu Puri, Bindu Jaidka and Vinod Jaidka respondents No.5 to 7 as defendants No.3 to 5. It is unfortunate litigation between family members. Naresh Cheba father of plaintiffs No.1 and 2 and husband of plaintiff No.3 was son of Tripta Cheba-defendant No.1 and her husband M. L. Cheba. Defendant No.2-petitioner is also son of M. L. Cheba brother of late Naresh Cheba. Plaintiffs claimed in the original suit that M. L. Cheba has executed will whereby life estate in the suit house was bequeathed to Tripta Cheba-defendant No.1 and after her death, the property was to devolve upon plaintiff No.1. Accordingly, plaintiffs sought declaration of validity of the Will and also sought permanent injunction restraining defendant No.1 from alienating the suit property.

During pendency of the suit, Tripta Cheba-defendant No.1 died and plaintiff No.1 who was earlier minor attained majority. Plaintiffs moved application for amendment of plaint to also seek relief of mandatory injunction against defendant No.2 directing him to deliver the possession of ground floor of the suit property to the plaintiffs and also for recovery of manse profits. Consequential amendments in the plaint were also sought.

Defendants resisted the application for amendment of plaint and controverted the allegations of the plaintiffs.

Learned trial Court vide impugned order Annexure P-4 allowed the application of plaintiffs for amendment of plaint. Feeling aggrieved, defendant No.2 has filed this revision petition.

I have heard learned counsel for the petitioners and perused the case file.

Counsel for the petitioner contended that the plaintiffs by amendment of plaint have introduced a new case that defendant No.2 was licensee of his mother in ground floor portion of the house and this new plea could not be taken by amendment of plaint. The contention cannot be accepted. It is undisputed that defendant No.2 was residing with his mother Tribta Cheba-defendant No.1. According to plaintiffs, Tripta Cheba had life estate in the suit house and, therefore, had right to reside in the ground floor portion of the house. If defendant No.2 was residing with defendant No.1, at the time of filing of the suit, plaintiffs could not have claimed relief of possession of the ground floor portion of the house or relief of mandatory injunction against defendant No.2 because by then, plaintiffs had no right to seek such relief during life time of defendant No.1. However, after the death of defendant No.1, the plaintiffs became entitled to seek this relief and, therefore, moved application for amendment of plaint. Consequently the application for amendment of plaint has been rightly allowed because the same was necessitated due to death of defendant No.1 during pendency of the suit and due to attainment of age of majority by plaintiff No.1 during pendency of the suit. For the reasons aforesaid, I find no infirmity, much less illegality, perversity or jurisdictional error in the impugned order of the trial court so as to warrant interference by this Court under Article 227 of the Constitution of India. The revision petition is bereft of any merit and is, therefore, dismissed in limine.