Sona (Dead) And Others @APPELLANT@Hash Malik And Others

This civil revision is directed against the order dated 31st of March, 2015, of the Court of learned Munsiff, Dangiwacha, passed in File No. 48 of 2006, bearing the title 'Malik and Others v. Sona and Others'.

For appreciating the merit of the issue involved, it would be proper herein to have narration of the factual grounds as put forth in the revision petition.

An application was filed by the petitioners/defendants before the trial court for amendment of the written statement on following grounds:

(i) That the plaintiffs of the above titled suit have filed suit for declaration permanent injunction and partition for a land 1 Kanal and 15 Marlas under survey No. 951 situated at Moza Hib Dangerpora Rafiabad, Tehsil Rohama and also for a Shamilat land without its description to be identified and the case was registered defendants were summoned and called upon to file written statement the same was filed. The issues in the suit have not been struck out even the preliminary statement of the [arties is yet to be recorded las such the suit is at its threshold.

(ii) That the defendants filed an application for amendment of their written statement for pleading the ground that the suit of the plaintiff for non-joinder of necessary and proper party is liable to be dismissed and also that the suit of the plaintiff in view of the omission of claim of relief of declaration and partition in the first suit as such the present suit is being subsequent is liable to be dismissed the application after hearing both the parties was disposed of by this Hon'ble Court on the score of non-disclosure of the name of the parties who are proper and necessary so that in whose absence the suit is liable to be dismissed secondly the Court on the point of omission of the plaintiff to claim for partition and declaration in the first suit the Hon'ble Court has returned this finding that the matter has been decided under Section 10 of the CPC thus necessitated the defendants to submit the present application.

(iii) That the Jamabandi/revenue record submitted by the plaintiffs in support of their plaint reflect that one Mst. Mugli widow to the extent of 25 share and Mst. Bakti D/o Abdullah Dar 24 share which in total amounts 49 shares, while as the suit has been filed by the plaintiffs 1 and 4, heirs of Subhan Dar who has been shown as owner to the extent of 28 shares and by Mst. Shara who is heir of Ahmad Dar, who is shown to have only 23 shares, so in total plaintiff as per their own document have claim over 51 shares out of the total suit land, as such when the plaintiffs set up their claim with the defendants as joint owners and possessors to the exclusion of the aforesaid Mst. Fazli and Bakti, who are proper and necessary party to the exclusion no effective judgment or decree can be passed and in case allowed to be passed cannot be executable, secondly this suit under Order 2 Rule 2 of CPC is liable to be dismissed, as the first part of the prayer if permitted to the incorporated in the written statement by way of amendment will not cause any prejudice or any type of loss or injustice to the plaintiffs as the suit is at it threshold on the other hand if the Hon'ble Court does not accord the application the defendant will definitely be berefted from his valuable right to defend the suit and to take the additional ground as defense thus will be just and proper and for the fair trial to accord the permission for in corporation of this plea.

By this application as further submitted in petition, it was brought to the notice of the trial Court that apart from the respondents/plaintiffs, there are other shareholders in the property in dispute. The application was considered by the trial Court and the same was dismissed on the count that it was belated one and the names and particulars of necessary parties were not provided by the applicants/defendants, who are required to be made as party defendants. After dismissal of the application, petitioners/defendants moved another application for amendment. On 01.01.2013 defendant No. 1 had died and was survived by his legal heirs as:

(i) Abdul Khaliq Dar Son of Sonullah Dar aged 60 years.

(ii) Mst. Raja daughter of Sonullah Dar aged 55 years.

(iii) Mst. Mehtaba daughter of Sonullah Dar, aged 53 years.

(iv) Abdul Rashid Dar son of Sonullah Dar, aged 50 years and

(v) Mst. Haniefa daughter of Sonullah Dar, aged 45 years.

It is being put forth in revision petition that no doubt, an application for bringing on record the legal representatives was filed by the plaintiffs/respondents before the trial Court on 14.02.2013, but that same has not been decided so far. The second application was considered by the trial court and the same has been dismissed on 31.03.2015, on the sole ground that the trial Court had already dismissed an application for allowing the petitioners/defendants to amend their written statement, as such, the doctrine of res-judicata will apply to the instant application also.

Aggrieved by the aforesaid order, the petitioners/defendants throws challenge to said order precisely on following grounds:

(i) That the principle of res-judicata will not apply to application filed in the suit from time to time including an application for amending the written statement.

(ii) What was to be amended was that despite the fact that apart from the respondents/ plaintiffs there were other shareholders who have not been arrayed as parties, therefore, in absence of necessary parties the suit has to be dismissed.

(iii) The trial Court could have of its own by utilizing the powers explicit under Order 1 Rule 10 CPC arrayed the persons referred in as party defendants. The previous application was rejected on the count that the petitioners have not given the particulars of the shareholders who have interest in the suit property apart from the defendants. In Subsequent application, defendants have given the name of the shareholders along with the extent of the share they have. It has also been pleaded that in absence of such shareholders as parties to the suit, the decree cannot be executed, if passed. A fact was brought to the notice of the trial Court with full particulars and the trial Court could have arrayed them as party defendants or should have allowed the amendment so that an issue could have been framed whether the shareholders have a right in the suit property or not. Instead of doing so merely utilizing the provision of resjudicata, which does not apply, dismissed the application by order dated 31.03.2015.

(iv) Furthermore, that the defendant No. 1 Sona had died on 01.01.2013 and an application has been filed for bringing on record his legal representatives by the plaintiffs. The application has not been decided so far, as such, an order has been passed against a dead person also, therefore, the order cannot be sustained under law.

(v) That in the suit the preliminary statements of the parties has not been recorded so far. The suit is at its initial stage. Even in the appeal the pleadings can be amended and bar by limitation to such application is not acknowledged by law except where the delay give a right to the plaintiff under law which is not the case in hand because no right has accrued in favour of the plaintiffs/respondents which is being taken by seeking amendment, therefore, the dismissal of the application is bad in law and the order impugned is liable to be set aside.

Heard learned counsel for the petitioners, who reiterated that the respondents have filed two suits before the Munsiff, Tragpora Dangiwacha, one for permanent injunction and the second for declaration and possession. In both the suits, the subject matter of the property is 1 Kanal and 15 Marlas of land covered under survey No. 951 situated at Hib-Dangerpora Rafiabad in Tehsil Ruhama Sopore. In first suit, decree for permanent injunction has been sought for restraining the petitioners-defendants permanently from dispossessing the respondents-plaintiffs. The petitioners-defendants have filed their written statements in both the suits, wherein they have pleaded that the land is in their possession and defendants are cultivating the same since decades. It is further submitted that an application for injunction filed by the respondents/plaintiffs in first suit for permanent injunction was decided by the trial Court on 04.12.2006 and the trial Court directed the petitioners/defendants to sell the admitted quantity of the fruit and submit the accounts before the Court. Against the said order, appeal was preferred, which was also dismissed. Immediately thereafter another suit was filed with regard to the same property in which decree for declaration was sought to the effect that the plaintiffs/respondents and petitioner/defendants be declared to be joint/co-owners of the suit property and that the suit property be declared joint and un-partitioned between the plaintiffs and defendants. After filing the written statement one of the defendants, defendant No. 1 Sona died and an application was filed for bringing his legal representatives on record as defendants is still pending before the trial Court. It is further pleaded that the application was filed for amendment of the written statement which was dismissed for reason of delay in making such an application and that the defendant has not given the names of necessary parties in the said application. Thereafter, the petitioners moved another application through counsel in which it was pleaded that the suit of the respondents-plaintiffs has to be dismissed for non-joinder of necessary parties and that as the relief of declaration and partition has not been sought in the first suit. The petitioners-defendants filed second application for amendment of written statement, which was disallowed by the learned trial Court. The approach of trial Court was improper according to learned counsel.

On the other hand, learned counsel for the respondents submitted that no ground is made out for setting aside the order more particularly in view of the bar to the exercise of revisory powers under Section 115 CPC. Power under Article 227 of the Constitution of India read with Section 104 Constitution of Jammu and Kashmir too cannot be exercised. Learned counsel has also submitted that the petitioners herein have prayed for exercise of power under Section 227 of Constitution of Jammu and Kashmir, which on the fact of it is misconceived.

Considered the rival submissions.

It is apparent from the perusal of the impugned order that the learned trial Court has declined to concede to the request made by the petitioners herein for amending the written statement. It has given the reasons for the same including the application of the principle of res judicata.

There is bar to the exercise of power under Section 115 CPC as the order impugned passed in favour of the petitioners would not have terminated the proceeding in their favour. The power under Section 115 CPC cannot be extended to examine the permissibility or otherwise the legality of the said order for this.

It may also needed reiteration herein that while dismissing the application earlier filed, the trial Court had not only taken notice of the fact that application was not only filed at a belated stage, but also the application did not disclose who were required to be impleaded. The judgment relied upon by Mr. Qureshi titled Rajesh Kumar Aggarwal v. Rajmala Export(s) Pvt. Ltd., reported in 29012 (5) SCC 337, is not applicable to the instant case, in view of the distinguishable features. Even in the said judgment, it is laid down therein that nature of proceedings and scope of enquiry can be touchstone for examining whether the general principles under Section 11 are applicable or not.

Alternative prayer made for exercise of jurisdiction in terms of Section 104 of Constitution of Jammu and Kashmir, when examined in the light of principle of law laid down in this regard by the Hon'ble Apex Court in various cases too cannot be acceded on a review of principle of law. It is clear that the power under said section is not unbridled in nature for correcting all species of hardships, contended being faced by any decision of a subordinate Court which according to perception of a party is not legal.

Their Lordships of Hon'ble Apex Court in "Waryam Singh and another v. Amarnath and another" reported in 1954 AIR 215, have referred to the observations made by Harries C. J. in Dalmia Jan Airways Ltd. v. Sukumar Mukherjee (2) that the power vested with the High Court in terms of Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within bounds of their authority and not for correcting mere errors. Nonetheless, there cannot be any dispute that power under Section 104 of the Constitution of J&K or Article 227 of the Constitution of India exercised even suo-moto by the Court and for doing so it may convert a revision petition into a petition under Section 104 of the Constitution of J&K.

In "Shalini Shyam Shetty & anr vs. Rajendra Shankar Patil", (2010) 8 SCC 329, the Hon'ble Apex Court while referring to the case of "Laxmikant Revchand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi" reported in (1995) 6 SCC 576, reminded the High Courts that the power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. Their Lordships also remarked that the jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. It has been also the observation of Their Lordships that the High Court cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it.

Viewed in the context of what has been said and done above, the petition of the petitioners sans merit. It entails dismissal and is, accordingly, dismissed.