Gian Singh vs Joginder Singh and others

R.N. Mittal, J.—This application has been filed under Sections 151, 152 and 153 of the CPC praying for the amendment of the plaint and the decree sheet. It is stated in the application that the plaintiffs instituted a suit for possession by way of redemtion for half share of land comprised in Khata No. 374, Khatauni No. 602, Killa No. R. 63/6-15/1-14-7-5-79/4-25/2 Killa seven measuring 40 Kanals vide Jamabandi of 1964-65 on payment of Rs. 100/-. It is further stated that in fact the Killa No. were R. 63/25/2, R. 79/4, 7, 14, 15/16 but by oversight wrong Killa Nos. were mentioned in the plaint. The suit of the plaintiffs, it is also stated, was decreed with respect to wrong Killa numbers. In the circumstances the above said prayer has been made. The application has been contested by Gian Singh, defendant-appellant only.

Mr. Sarin, learned counsel for the appellant, has raised an objection that before ordering amendment of the plaint and the decree sheet it is necessary that all the respondent mortgagees should be served. I do not agree with the learned counsel for the appellant. In order 41, Rule 14, C.P.C., this High Court added an amendment wherein it was provided that it shall be in the discretion of the appellate Court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of, or at any proceedings subsequent to the decree of that Court.

In the present case it is not disputed that only Gian Singh, appellant, contested the suit and no other defendant appeared in the trial Court or in the first appellate Court or in this Court. In the circumstances, I do not think, that service on them is necessary. I consequently dispense with their service for the decision of this petition.

Mr. Sarin has then urged that in view of Section 97 (1) of the CPC (Amendment) Act, 1976 (hereinafter referred to as the Amendment Act), the amendment by the Punjab and Haryana High Court referred to above stands repealed. The aforesaid section reads as under:--

Repeal and savings:--(1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act ''shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed.

A reading of the aforesaid section shows that it is not all the amendments made by a High Court that stand repealed by virtue of this Section but only those amendments stand repealed which are inconsistent with the amended provisions of the Civil Procedure Code. Mr. Sarin has not been able to point out any provision in the Code after amendment which is inconsistent with the earlier amendment. In the circumstances I am of the opinion that the aforesaid provision does not stand repealed by section 97(1) of the Amendment Act. 1, therefore, reject this contention of the learned counsel.

I have gone through the Killa Nos. mentioned in the plaint and in the Jamabandi of 1964-65, Ex. P-4. From their perusal it appears that by oversight Rectangle No. 79 was not mentioned as such but was shown as a Killa. The number of the Killas have been given correctly in the plaint. It is further evident from the plaint that Khata No. and Khatauni No. have been mentioned correctly in it. A reference has also been made in the plaint to the Jamabandi from which numbers have been taken and its copy had been annexed with the plaint, which was marked as Ex. P-4. In the copy of the Jamabandi, the details of the property have been given as follows:

Rectangle No. 63.

1 Kanal 10 Marlas

Killa No. 25/2

Rectangle No. 79

Killa No. 4

8 Kanals

Killa No. 5

6 Kanals 12 Marlas

Killa No. 7

8 Kanals

Killa No. 14

8 Kanals

Killa No. 15/1

3 Kanals 2 Marlas

Killa No. 6

4 Kanals 16 Marlas

It is also portinent to mention that no objection was taken by the defendant-appellant that the numbers in the plaint had been given wrongly and did not tally with the numbers given in the Jamabandi of 1964-65. From the circumstances it appears that the parties contested case regarding the land as given in the Jamabandi. After taking into consideration all the aforesaid circumstances. I accept the application with costs and allow the amendment of the plaint and the decree sheet. Let amendments be made accordingly. Counsel fee Rs. 100/-.