Sayad Ahmad vs Daulat Ram and Others

H.S. Bedi, J.—The present petition arises out of an Order of the Sub Judge Ist Class, Palwal, whereby the application filed under order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure, seeking to amend the plaint has been dismissed.

The case of the parties is that vide a sale deed dated February 7, 1989, some agricultural land was sold by one Daulat Ram to the respondent, herein. The plaintiff-petitioner claiming to be a co-sharer in the land which had been sold, filed a suit for pre-emption within limitation on February 16, 1990 impleading four out of the six vendors as defendants, leaving out Fajru and Johuru sons of Chhajju. In the written statement filed on behalf of the defendants, the plea was raised that a decree for partial pre-emption could not be passed because Fajru and Johuru had not been impleaded as parties to the suit. The plaintiff-petitioner thereafter filed an application for amendment on September 30, 1991 seeking to rectify the defect in the plaint. The plea in the application was that in the certified copy of the sale deed provided by the Sub Registrar, the names of Fajru and Johuru were missing and the plaintiff ought not to be penalised for no fault on their part. The application was contested by the defendant-respondent on the ground that on the date of filing of the application, limitation for filing the suit had expired and as such, Fajru and Johuru could not be impleaded as respondents as by the passage of time a right had accrued to them. On facts, it was asserted that in a previous suit No. 142 of 1989 which had been filed way back on March 14, 1989 Johuru and Fajru had been named as co-defendants being co-sharers and as such, the plaintiff-petitioner had the knowledge of the title of the suit land. The trial court after going through the matter, dismissed the application holding that the petitioner had the knowledge that Johru and Fajru were the co-sharers in the suit land along with the order four defendants and as such the application having been filed beyond a period of one year from the date of sale, was liable to be rejected.

Mr. R.S. Sihota, learned counsel appearing for the petitioner has submitted that on the admitted facts, it was clear that the certified copy of the sale deed given by the Sub Registrar for filing the pre-emption suit did not bear the names of Fajru and Johuru and in that eventuality, the petitioners could not be penalised for the omission made by the copying agency. He has asserted that the application was moved immediately on the filing of the written statement in which the objection of non-joinder had been taken. He has further urged that the earlier suit No. 142 of 1989 which was one for declaration alone did bear the names of the various co-sharers including those of Fajru and Johuru but as the pre-emption suit was to be filed on the basis of the sale-deed, the knowledge as to their being left out as co-sharers was irrelevant.

Mr. R.K. Jain, learned counsel for the respondent has, however, urged that from a reading of para 29 of the plaint in the earlier suit, the shares of Fajru and Johuru had been clearly spelt out and it had been further stated that these persons had recently purchased the l/3rd share of the land of Budh Ram deceased. He has urged on facts that a similar matter came up before a Division Bench of this Court reported in Bhawani Dass Vs. Kaushalya Rani, wherein it was held that amendment of the plaint could not be allowed in a case where some of the defendants had not been impleaded on account of a mistake in the certified copy of the sale deed, if the plaintiff had the knowledge.

I have heard the learned counsel for the parties and have gone through the documents produced by them in Court and find that there is no merit in this petition.

Admittedly, the right of pre-emption is a piratical right and if possible, the Court should take a view that will see it defeated even on a technical ground as held by this Court in Rameshwar v. Joinder Singh 1986 P.L.J. 85. Moreover, even on facts, I find that Fajru and Johuru were parties to the sale transaction and, therefore, are required to be impleaded and their absence would, therefore, be fatal to the case. A similar matter came up before the Division Bench of this Court in Bhawani Dass''s case (supra), where too the plaintiff had filed a suit only against one of two vendees on account of a mistake in the certified copy of the sale deed and an application for amendment of the plaint after the period of limitation for filing the suit, had expired, was held to be incompetent.

Mr. Sihota, has also placed reliance on Jang Singh Vs. Brijlal and Others, to the effect that though a litigant was required to be vigilant and take care of his case but it was equally for the Court to fulfill its obligation and to ensure that no litigant was prejudiced on account of some action of the Court or a Government department. Admittedly, there can be argument against this assertion but the answer is in the very judgment itself as it is clearly stated that it is for the litigant to be vigilant with regard to his case. On the facts stated above, it is clear that petitioner had not been vigilant enough as he had the knowledge that Fajru and Johuru were co-sharers in the land that had been sold, and were therefore, the necessary parties.

In view of the above, I find that there is no infirmity in the order of the trial court. This petition is, accordingly, dismissed with no order as to costs.