Sarvjeet Singh vs Gurdial Singh

M.L. Singhal, J.

This is a revision against the order of Civil Judge, Senior Division, Chandigarh dated 6.11.1998 filed by Sarvjeet Singh whereby his prayer for amendment of the plaint made under Order 6 Rule 17 of Code of Civil Procedure was refused. This prayer arose in the following circumstances :

Sarvjeet Singh instituted suit for declaration to the effect that S.C.O. No. 11081109 Sector 22B, Chandigarh had been purchased in the name of Mrs. Jagjit Kaur etc. defendantrespondent Nos. 2 to 5 by Gurdial Singh by sale of movable and immovable properties belonging to him (Sarvjeet Singh) and that he is owner of the said property to the extent of its 1/2 share as being the real brother of Gurdial Singh. Sarvjeet Singh is the younger brother of Gurdial Singh. Defendant Smt. Jagjit Kaur is Gurdial Singh''s wife. Defendant Jasmer Kaur is motherinlaw of Gurdial Singh. Defendants Miss Sonia Bal and Vikram Bal are Gurdial Singh''s minor children. Sarvjeet Singh''s mother died in the year 1966 at Bikaner when Sarvjeet Singh was aged about 12 years. It was a joint Hindu family comprising him, Gurdial Singh, their two sisters and their father Inder Singh. In the year 1974, their father Inder Singh also died. Residential house had been built by the resourses of their father in the name of Sarvjeet Singh and Gurdial Singh. Gurdial Singh defendant did not have any saving. He was earning Rs. 2000/ per month including allowances and he did not have any saving capacity. He did not have any bank balance. With increase in income of Gurdial Singh, his expenses also increased because of his children having reached the school. Besides salary income, Gurdial Singh had no other source of income. His wife and other defendants did not have any source of income. In nutshell, Sarvjeet Singh''s case was that S.C.O. No. 11081109 had been purchased by Gurdial Singh out of the income provided by him and, therefore, he was real owner to the extent of 1/2 share of S.C.O. No. 11081109. Gurdial Singh took general power of attorney from him for managing the immovable properties belonging to him and the properties left by their father and mother. He had given him power of attorney in good faith believing that he will look after the properties and render him true and faithful account. He sold his share of the properties and made collections as mentioned in para No. 8 of the plaint but did not render him account and invested the collections in the purchase of the shop in dispute. Defendants Smt. Jagjit Kaur etc. alone are not purchasers but he is also the purchaser to the extent of 1/2 share of S.C.O. No. 11081109.

Defendants contested the suit of the plaintiff urging that House No. 3169 Sector 21D, Chandigarh had been constructed by Gurdial Singh exclusively and it was exclusively owned by him. Its construction had been supervised by his father S. Inder Singh whom he had given the special power of attorney. It was denied that any share of the property belongs to the plaintiff.

By way of amendment of plaint, plaintiff wanted to incorporate para Nos. 10A and 10B in the plaint, which read as follows :

"10A. That the defendant No. 1 in terms of the will dated 25th August, 1972 duly registered with the Sub Registrar, U.T., Chandigarh was to act as a Manager and Guardian of the plaintiff till the contingencies existed as directed by late Sh. Inder Singh. The plaintiff attained the age of 30 years on 29th August, 1984 and the plaintiff got married on 25th of November, 1985 and the defendant No. 1 acted as Manager and Guardian of the plaintiff till then and the defendant No. 1 was to hand over the movable and immovable properties to the extent of 1/2 as per the Will and other properties not subjectmatter of the will. The defendant No. 1 failed to adhere to the said direction of late Sh. Inder Singh.

Para 10B. That the site and the building was construed on Site No. 1108 1109, Sector 22B Chandigarh and after completion the defendant No. 1 for himself and on behalf of the other defendant Nos. 2 to 5 let out the portions thereof to tenants and was receiving rents from the tenants. The tenants on the ground floor and the basement vacated the portions of the building and the same were let out by the defendant No. 1 for himself and on behalf of the other defendants and has been realising the rents from the tenant and on asking by the plaintiff to realise the share of his rents from the tenants, the defendant No. 1 and other defendants was obstructed by them. The site is subject to the provisions of the Capital of Punjab (Dev. and Reg.) Act, 1952 and the rules framed thereunder and under Rule 1 of the rules framed under the said Act, the site/building constructed thereon is not permitted to be partitioned. The defendants refused to permit the plaintiff to collect the share of rents from the tenants. A further amendment has been sought to be made by the plaintiff in the plaint that the plaintiff is entitled to realise rents from the tenants to the extent of 1/2 share."

As per plaintiff Sarvjeet Singh, Inder Singh had constituted registered Will on 25.8.1972 bequeathing his properties movable and immovable situated anywhere and as per that bequest, he had constituted Sarvjeet Singh and his elder son Gurdial Singh as equally entitled to all his properties. He had mentioned that residential plot No. 3169 in Sector 21D, 26E Street, Chandigarh purchased by him had been gifted to his elder son Gurdial Singh out of love and affection, who had gifted 1/2 share of it to his brother Sarvjeet Singh out of natural brotherly feeling and affection and while house No. 3169 on plot No. 26E Street, Sector 21D Chandigarh was being constructed, Gurdial Singh had given him Rs. 25000/ towards construction of the house out of his own funds/hard earned money and rest of the expenditure incurred in the construction had been borne by him. Rs. 25000/ shall be paid by Sarvjeet Singh to Gurdial Singh and it was only on paying Rs. 25000/ to Gurdial Singh that Sarvjeet Singh will become entitled to his share. It was upto Gurdial Singh to recover or not to recovery Rs. 25000/ from his younger brother Sarvjeet Singh and he could waive off Rs. 25000/. This amount shall remain charged on all the properties which was in the name of his younger son named Sarvjeet Singh which had been created by him and Gurdial Singh only in his name (in the name of Sarvjeet Singh). Rest of the movable and immovable properties which are located at various places in Punjab and elsewhere throughout will be divided half and half between both the brothers. Till Sarvjeet Singh reaches the age of 30 years or gets married whichever is later Gurdial Singh alone would look after and be the sole Manager of the whole of the properties wherever it is situated. It is further provided in that will by Inder Singh that if he died earlier and unexpectedly Sarvjeet Singh would only be entitled to half of the share of his properties after he attains the age of 30 years or gets married or settles down in life whichever is later and is fully competent and matured to take the effective control of his share of the property. Gurdial Singh will compensate and reimburse Sarvjeet Singh and his complete dues would be paid accordingly at the time when Sarvjeet Singh attains the control of the share of the property at the age of 30 years or when he gets settled whichever is later. His movable property i.e. bank accounts and ornaments will also be divided among his two sons (subject) of course, to the restriction imposed on his younger son Sarvjeet Singh as mentioned above. Whatever property, movable and immovable, left out of this deed will also be divided between two sons equally but after his death and till Sarvjeet Singh attains the age of 30 years or gets married whichever is later, he will be his guardian.

Through incorporating para No. 10A of the plaint, Sarvjeet Singh wants to plead that in house No. 3169 Sector 21D Chandigarh he had 1/2 share and his elder brother Gurdial Singh enjoyed the income of the half of the properties belonging to him for a number of years and he purchased this property in his name and in the name of the other defendants with the money which belonged to him.

Through para No. 10B of the plaint, he wants to incorporate that after constructing S.C.O. No. 11081109 Sector 22D Chandigarh he let out the portions thereof to tenants and received rent. He did not account for the rental income of this S.C.O. to the plaintiff.

This application was opposed by the defendantrespondents urging that on the basis of Will and general power of attorney, Sarvjeet Singh had filed civil suit claiming an amount of Rs. 2,00,000/ which was adjudicated by Civil Judge, Senior Division, Chandigarh. He restricted his claim to Rs. 1,87,500/ and gave up his claim with regard to Rs. 18,12,500/ (13,12,500/ ?) Decree was passed for Rs. 10,000/ only. In the S.C.O. there were tenants in the year 197980. In the civil suit filed on the basis of Will for rendition of account this relief could also have been asked for. For the reasons known to the plaintiff, he did not ask for this relief. He is barred to claim this relief now in view of the provisions of Order 2 Rule 2 of the Code of Civil Procedure. In Will dated 25.8.1972 said to have been executed by Inder Singh this SCO was not the subjectmatter. The property namely Gurdial Complex itself (is self ?)acquired property of Gurdial Singh. It was acquired after the death of Inder Singh. Defendant Nos. 2 to 5 are benamidars of Gurdial Singh in this SCO. Proposed amendment is irrelevant sought to be introduced after a lapse of 13 years of the institution of the suit.

I have heard the learned Counsel for the parties and have gone through the records.

The basis of the claim of the plaintiff in the plaint as originally laid was that he has 1/2 share in S.C.O. No. 11081109 because half of it had been purchased by the sale proceeds of the movable and immovable properties belonging to him. In the plaint, he has said that Gurdial Singh had no saving wherewith he could purchase plot and raise construction of SCO on it in Sector 22B, Chandigarh. Other defendants, who were joint with him in the purchase of SCO No. 11081109 also have no source of income. Gurdial Singh held general power of attorney from him for managing movable and immovable properties belonging to him and left by their father as well as by Mrs. Kartar Kaur. He sold property, realised rental income and purchased this property. He did not account for the sale proceeds and the rental income derived by him.

Through the proposed amendment, the plaintiff wanted only to amplify the basis of his claim and cause of action originally pleaded is not to be displaced nor the same is to be abandoned and new cause of action substituted. Through the proposed amendment, plaintiff wants to plead that Inder Singh was favourably disposed towards him and he had willed away his property both movable and immovable equally to him and his brother Gurdial Singh and further he had constituted his brother Gurdial Singh as his guardian to take care of his properties, realise the income therefrom till he reached the age of 30 years or till he got married. Through this amendment, Sarvjeet Singh wants to show that Gurdial Singh was in a position to deal with the properties and realise the income therefrom pertaining to his share. Proposed amendment if allowed would advocate the cause of justice and enable Sarvjeet Singh to show that his claim is not without any basis. In para 8 of the plaint, Sarvjeet Singh has given list of the properties about which he says his brother collected the proceeds and did not account for thereof to him and invested the proceeds in the purchase of the plot and construction of building of SCO No. 11081109 Sector 22B, Chandigarh. Law as to amendment of pleadings is liberal. Amendment can be allowed at any stage of the case if it enables the court in deciding the controversy between the parties in a more just and fair manner. However negligent or careless may have been the first commission and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. Plaintiff may add a new cause of action and the defendants may add a new defence. Even a new case may be allowed to be introduced if proposed amendment is not destructive of the original plea. Rules of procedure are mere handmaid of justice. Procedure is designed to advance justice and not to throttle justice.

Faced with this situation, learned Counsel for the respondents submitted that the proposed amendment should not be allowed as the suit was instituted in the year 1986. If the plaint is allowed to be amended now it will be setting the clock back. It was submitted that after all there should be end to this "lis" and there should not be endless wait to the decision of the lis. It was submitted that the plaintiff had earlier filed suit on the basis of Will and, therefore, he should not be allowed to agitate over again so far as that Will is concerned. Suffice it to say, the plaintiff had merely filed suit for rendition of account on the basis of that will. He had not claimed any succession on the basis of that Will. Even now he is not claiming on the basis of that Will. All that he wants to say is that his father was owner of the huge properties and he had constituted his elder brother Gurdial Singh to take care of the properties of his share and collect income thereof pertaining to his share and he created (erected ?) shop No. 11081109 with the income pertaining to his share. In this case, there is no question of accrual of any right to Gurdial Singh because of lapse of time. Even otherwise, merit of the claim to amendment is not required to be seen. Amendments is allowed if the object is to avoid multiplicity of litigation. Learned Counsel for the respondents submitted that in exercise of revisional powers vesting in this court under Section 115 C.P.C., this court should be slow in reversing the order passed by the lower Court. It should reverse the order passed by the lower Court if it had exercised its jurisdiction illegally or with material irregularity. This Court will not interfere even if the order of the lower court is right or wrong and is not in accordance with law.

In this case, the learned lower Court has not exercised the jurisdiction vesting in its properly and, therefore, this court has to interfere in the exercise of its revisional jurisdiction. So, this revision is accepted and the proposed amendment is allowed on payment of Rs. 200/ as costs. Payment of costs shall be condition precedent.