Gangesh Kumari vs Arun Saon and Others

Servesh Kumar Gupta, J.—Instant revision has been preferred to challenge the order impugned dated 29.5.2014, passed by the Civil Judge (Sr. Div.), Dehradun, whereby amendment application 488-Ka, moved by all the plaintiffs, was allowed. Feeling aggrieved, one of the defendants Smt. Gangesh Kumari has come up before this Court. To appreciate the merits of the sought amendments alongwith the order passed thereon, it is necessary to have a look on the brief description of the facts averred in the plaint as well as the relief sought therein.

Original Suit No. 959/1990 was instituted by late Kewal Sanon seeking the relief of declaration of ownership on the property disclosed in Schedule B at the last of the plaint as well as the relief of prohibitory injunction against the defendants, who are the widow and daughter of deceased Raja Raghavinder Singh, who breathed his last sometime in 1987. The relief of declaration of ownership was sought on the basis of adverse, peaceful, continuous, open and uninterrupted possession over the property in question, and the further averment was also made in para 9 of the plaint in the following words:

"He has been managing the said property as an owner and using it to the knowledge of the said deceased and the defendants and to their exclusion. The plaintiff has perfected his title by adverse possession."

As the suit was being proceeded, the defendants moved an application under Order VII, Rule 11 of the Civil Procedure Code on 27.4.2013 seeking rejection of the plaint on the premise that declaration of title cannot be sought as a relief on the basis of adverse possession, but such possession can be used by the plaintiffs as a defence. Such application moved by the defendants was still pending, and anticipating the fatal effect of that application, the plaintiffs moved the amendment application on 7.3.2014 seeking to delete the relief "B" (the relief of declaration of title on the basis of adverse possession) with the prayer that relief "B" be now read and re-numbered as relief "A". This amendment application was vehemently opposed by the defendants, nonetheless it was allowed by the learned Civil Judge expressing his view that such an amendment will not affect the nature of the suit.

Learned Counsel of the revisionist has drawn the attention on Rule 37 of the General Rules (Civil), which mandates that any amendment sought in the pleadings will follow seeking of the consequential amendments or otherwise amendments so sought cannot be allowed. Per contra, it was argued by the learned Counsels on behalf of the plaintiffs/defendants that they are the dominus litis of their suit and so they cannot be impelled to delete the particular averments and, more so, when the deletion in the prayer clause, as has been narrated above, in to way, is going to affect the nature of the suit as well as does not co-relate with the averments in para 9 and other paras of the plaint.

This Court feels that learned Civil Judge has certainly failed to appreciate the nature of the amendment as he has allowed. He could have allowed the deletion of the prayer "A" in the relief clause, but at the same time, it was indispensable to make the necessary consequential amendments in the averments of the plaint. This Court does not agree at all that the deletion of the Clause "A" will, in no way, cause the prejudice to the defendants, notwithstanding the averments in the later part of para 9 of the plaint are left intact. If the situation is permitted as such, the clever device of plaintiff to circumvent the law laid down by Apex Court in Gurudwara Sahib case (wherein the judgment of Punjab and Haryana High Court has been affirmed) will succeed.

It is pertinent to mention that on the basis of para 9, issue No. 3 was famed to the effect "Whether the plaintiffs have perfected the title by way of adverse possession?" The finding on this issue, if opined in affirmation then it will be as good as the prayer of relief "A" sought in the plaint earlier before the amendment. So, the arguments of learned Counsels of the plaintiffs/respondents are quite unsubstantial on this score and the Court is unable to agree at all from the submissions of learned Counsels of the plaintiffs/respondents.

Impugned order dated 29.5.2004 is quashed with the result that amendment application 488 Ka, so moved by the plaintiffs, is hereby rejected. However, the plaintiffs will be at liberty to move a fresh amendment application seeking the deletion of relief "A" alongwith the consequential amendments and the Court will ensure that the issue No. 3 will be deleted, and if the deletion of such issue is not sought by the plaintiffs within 15 days of producing certified copy of this judgment, then the Court will hear the application moved by the defendants under Order VII Rule 11 of the Civil Procedure Code dated 27.4.2013 in the light of the Supreme Court Judgment in Gurudwara Sahib v. Gram Panchayat, Village Sirthala and another, decided on 16.9.2013. Revision is allowed.