Jagmal Singh vs Smt. Mehma Devi and Others

V.S. Aggarwal, J.—By this common judgment both the revision petitions namely Civil Revision Nos.1262 and 1263 of 1998 can conveniently be disposed of together. By virtue of the two separate orders passed by the learned Additional Civil Judge, Sr. Division, Kurukshetra the learned trial Court had allowed the application filed by the respondents seeking amendment of the written statement.

The relevant facts are that respondents had filed a suit for possession claiming themselves to be the owners of certain land. The suit as such was contested and in the written statement filed, a specific plea had been taken that respondent was not dispossessed as alleged in the plaint. In fact the possession was taken on 9.6.1984. The issues were framed and this controversy was kept alive by virtue of the issues so framed.

The respondent in Civil Revision No. 1262 of 1998 filed an application seeking amendment of the plaint and prayed for correction of Khasra numbers of the land in question. It was further prayed that respondent should be allowed to plead that she was dispossessed on 11.6.1984. The application was contested. It was denied that there was any typographical mistake. The case of the petitioner was that respondents cannot be allowed to change the nature of the case. The learned trial Court held that questions in controversy which are necessary to decide, should be allowed to be incorporated by virtue of the amendment. According to it if amendment is refused, it would frustrate the proceedings. Accordingly, the application was allowed on payment of costs In Civil Revision No. 1263 of 1998 almost an identical order had been passed. But herein there was no correction pertaining to the Khasra numbers.

Aggrieved by the orders allowing the amendments, the present revision petitions have been filed.

Learned counsel for the petitioners had urged that in the written statement filed, it was specifically pleaded that respondents had been dispossessed in the year 1984. Issues were framed in this regard and evidence produced. If the amendment is allowed and respondents are permitted to incorporate the date of dispossession as alleged by them, it would cause irreparable loss to the petitioner and in any case, the claim from the said date would be barred by time. The respondents'' learned counsel supported the impugned order by pointing that the amendments were basically only procedural in nature. It elucidated certain facts and, therefore, the trial Court was justified in passing the impugned order.

At the outset it can well be mentioned that so far as the order allowing the Khasra numbers of the land in question is concerned, there can be no controversy because inadvertent mistake in mentioning of the Khasra numbers can always be allowed. The parties knew the land in dispute and in the peculiar facts of this case, the trial Court was justified in allowing the amendment.

The basic controversy between the parties was as to the date when the respondent is allowed to have been dispossessed. The application seeking amendment was filed on 3.11.1997. The respondents contend that they were dispossessed on 11.6.1984. To this the objection is that the claim as such has become barred by time. The said plea of the petitioner indeed must prevail because if the amendment is allowed as contended by the respondents, the claim would be barred by time on the date when the amendment was claimed. Such an amendment indeed could not be permissible. The Supreme Court considered this aspect in the decision rendered in the case of K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, . It was held :-

"It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."

The facts of the present case are not much different. As pointed out above if the claim of the respondents is taken note of and amendment is allowed, it would be barred by time if dispossession was in the year 1984. The suit as contended now in the year 1997 could not be filed. Therefore, the amendment so allowed cannot be permitted.

For these reasons, the revision petitions are allowed in part and the amendment vis-a-vis the date of dispossession claimed by the respondents is disallowed. The parties are left to bear their own costs.