Har Parshad and others vs Ram Sahai and others

S.S. Kang, J.—This revision petition u/s 115 of the CPC is directed against the order dated 15th October, 1984, of the learned Subordinate Judge, I Ind Class, Faridabad, allowing the application under Order 6, Rule 17, CPC Code, filed by, Hari Singh, Respondent No. 3, seeking an amendment of his application under Order 1, Rule 10, CPC Code, pending in that Court.

Briefly stated the facts of the case are that Har Parshad and his two other brothers had filed a suit against Ram Sahai and Durga, Respondents Nos. 1 and 2 for a permanent injunction. In that suit, Hari Singh, Respondent No. 3, filed an application on 25th April, 1984 under Order 1, Rule 10, CPC Code, read with Section 151, praying that the name of the present Plaintiffs be struck off and instead the applicant should be substituted as the sole Plaintiff The Plaintiff-Petitioners filed a reply to this application and controverter the pleas m the application. In the application. Hari Singh, Respondent, has averred that Har Parsad had sold 1/6th share of Khasra No. 23/ 19/6, measuring four marlas to him vide registered sale deed dated 4th of December, 1972 and as per the entries in the sale deed, the said Hari Singh was put in possession by the said Plaintiff/vendor over 4 marlas. He farther pleaded that on 4th of December, 1972, i.e., at the time of the sale of land measuring 4 marlas out of khasra No. 23/19/6, located in the back of the house of the Plaintiffs, the Defendants were in possession, but inadvertently and by a typographical mistake, it was recorded in the sale deed that the possession of the land sold and covered by that sale deed had been handed over to Had Singh, applicant/vendee, on the spot, which was, in fact, not handed over to the applicant He further stated that thus the controversy about the disputed property was between Hari Singh, applicant, and the Defendants to the suit, and the present Plaintiff-Petitioners had so concern with the land in dispute. It seems that at this stage, Hari Singh realised that he could not pursue the suit for permanent injunction restraining the Defendants from interfering with his possession unless he took the stand that he was in the actual possession of the land in dispute. Therefore, the application for being impleaded as Plaintiff could be dismissed on this scare. He filed another application under Order 6, Rule 17, CPC for amendment of the previous application. In para 4, he prays as under:

It is, therefore, prayed that the words mentioned in para No. 2 of this application and underlined may kindly be struck off in the interest of justice . And/or any other relief which this Hon''ble Court deems fit and proper may be awarded to the applicant.

This application was resisted by the Petitioner. They pleaded that the application for amendment was not bonafide. It was filed with full awareness. By inadvertence and typographical mistake, a number of lines could not be struck off in the previous application. The words sought to be deleted amounted to admission of vital facts, rendering the application under Order 1, Rule 10, CPC Code, incompetent. So the same should not be allowed. The learned trial Judge, however, allowed the application, holding that it was an erroneous admission.

I have seen the original sale deed. In the sale deed, it has been mentioned that the possession of the land in dispute has been given to the vendee In the application under Order 1, Rule 10, CPC Code, it has been specifically mentioned that the possession of the land in dispute had not been handed over to the applicant/ vendee on the spot. This fact had been wrongly and inadvertently written in the sale deed. In fact, the Defendants were in possession of the land in dispute. Surely, all these facts could not find mention in the application under order 1, Rule 10 inadvertently. Something had been positively asserted In fact, the contents of the sale deed themselves were challenged. This could not have happened inadvertently. The applicant has not furnished any explanation for this volute face Apart from the facile averment that this had happened due to inadvertence, there is a merit in the submission of Sh. H.L. Sarin, Senior Advocate, counsel for the Petitioners that the whole exercise of filing the application for being impleaded as a party to the suit and the application for amendment of that application has been gone into by Hari Singh at the instance of the Defendants who are interested in delaying the suit. No case for interference for allowing the amendment was made out when a valuable admission had been made in favour of the Petitioners. The learned trial Judge has acted with material irregularity in allowing this application.

Consequently, I allow this revision petition and set aside the order dated 15th October, 1984, allowing the amendment and dismiss the petition with costs Counsel''s fee Rs. 100/-. The parties, through their counsel, are directed to appear before the trial Court on 29th January, 1985.