Swami Krishnacharya Ji Maharaj vs Rishikesh Giri

“a)

A decree for permanent injunction be passed in favor of the plaintiff and against the defendant whereby the defendant, his legal heirs, servants, employees, associates and person or persons, be restrained from interfering in the peaceful possession, use and enjoyment of the property in suit and to oust the plaintiff from the property in suit and take forcible possession of the property in suit, fully described at the end of the plaint.

b)

Cost of the suit be awarded in favor of the plaintiff and against the defendant.

c)

Any other relief in addition to the above for which the plaintiff be found entitled in law or equity, be also granted in favor of the plaintiff and against the defendant."

“न्यायालय प्रथम अपर जिला न्यायाधीश, ऋषिकेश, जिला देहरादून। मूल वाद संख्या 35/2016 स्वामी कृष्णाचार्य बनाम ऋषिकेश गिरी दिनांक: 16.11.2021

पृथ्वी गया। पक्षकारों के विद्वान अधिवक्ता न्यायालय उपस्थित। उभय पक्षों के अभिवचनों के आधार पर इस याचिका में निम्नलिखित वाद बिंदु विरचित किये जाते हैं।

1- क्या वादी वादग्रस्त सम्पत्ति / सूची सम्पत्ति वादपत्र 3/15 उसके पक्ष में निष्पादित विक्रय पत्र दिनांकित 02.06.2011 के आधार पर स्वामी व अध्यासी हैं? यदि हां तो प्रभाव। 2- क्या प्रतिवादी वादग्रस्त सम्पत्ति पर काबिज अध्यासी हैं? 3- क्या वादी को वर्तमान वाद का वाद कारण प्राप्त है? यदि हां तो प्रभाव। 4- क्या प्रतिवादी को प्रतिदावे का वाद कारण उत्पन्न / प्राप्त है? 5- क्या वादी का वाद आदेश 7 नियम 11 सी.पी.सी. के प्राविधानों से बाधित है तथा खारिज किये जाने योग्य है? यदि हां तो प्रभाव। 6- क्या प्रतिवादी को प्रतिदावा आदेश 7 नियम 11 सी.पी.सी. के प्राविधानों से बाधित है तथा खारिज किये जाने योग्य है? यदि हां तो प्रभाव। 7- क्या वादी का वाद अल्पमूल्यांकित है? यदि हां तो प्रभाव। 8- क्या प्रतिवादी का प्रतिवाद अल्पमूल्यांकित है? यदि हां तो प्रभाव।

9- क्या प्रतिवादी अपने काउंटर क्लेम में चाहा गया स्थाई निषेधाज्ञा का अनुतोष प्राप्त करने का अधिकारी है? यदि हां तो प्रभाव।

10- क्या वादी अपने वादपत्र में चाहा गया स्थाई निषेधाज्ञा का अनुतोष प्राप्त करने का अधिकारी है? यदि हां तो प्रभाव।

11- अनुतोष?

अन्य कोई वाद बिन्दु नहीं बनता है, न ही बल दिया गया है। नियत तिथि तक अंतरिम निषेधाज्ञा आदेश यदि कोई हो तो प्रभावी रहेगा। पत्रावली वास्ते निस्तारण प्रार्थना पत्र 6ग2 व साक्ष्य वादी हेतु दिनांक 25.11.2021 को पेश हो। ह०अ० 16.11.2021 (धर्म सिंह) प्रथम अपर जिला जज ऋषिकेश, देहरादून।

दिनांक 20.12.2021

पुकार पर पक्षकारों के विद्वान अधिवक्ता उपस्थित। पक्षकारों के विद्वान अधिवक्तागण को प्रार्थनापत्र 256ए पर सुना गया। जहां तक पूर्व में विरचित वाद बिन्दु दिनांकित 16.11.2021 का सम्बंध है तो इस सम्बंध में पक्षकारों को कोई आपत्ति नहीं है जबकि वादी के विद्वान अधिवक्ता के द्वारा अपने प्रार्थनापत्र कागज संख्या 256ए के द्वारा विवेचन एवं प्रांग न्याय परिसीमा अधिनियम से प्रतिदावा बाधित होने के सम्बंध में व प्रतिदावा विशिष्ट अनुतोष अधिनियम के प्राविधान से बाधित होने के सम्बंध में वाद बिन्दु विरचित करने के सम्बंध में तर्क किये गये हैं जिसमें पक्षकारों को कोई आपत्ति नहीं है। तदनुसार निम्न अतिरिक्त वाद बिन्दु विरचित किये जाते हैं।

वाद बिन्दु संख्या 12-

प्रभाव। क्या वादी का वाद प्रांग न्याय के सिद्धांत से बाधित है? यदि हां तो

वाद बिन्दु संख्या 13-

क्या वादी का वाद विवेचन के सिद्धांत से बाधित है? यदि हां तो प्रभाव।

वाद बिन्दु संख्या 14-

क्या प्रतिवादी का प्रतिदावा विशिष्ट अनुतोष अधिनियम के प्रावधानों से बाधित है?

वाद बिन्दु संख्या 15-

क्या प्रतिवादी का प्रतिदावा परिसीमा अधिनियम से बाधित है? यदि हां तो प्रभाव।

इसके अलावा कोई अन्य वाद बिन्दु नहीं बनता है। पत्रावली दिनांक 06.01.2022 को वास्ते प्रार्थनापत्र 6ग, 34ग एवं 249ए के निस्तारण हेतु पेश हो।

A) After paragraph No. 29 of the plaint and before paragraph no. 30, following new paragraph be added: -

29A. That despite service of ex-parte ad-interim injunction order dated 08.03.2016 upon defendant on 09.03.2016, defendant continued his illegal act of interfering in possession of plaintiff and created hindrance in carrying out demolition work over the suit property by attorney holder of plaintiff Sri Gopalacharya on 10.03.2016 and have broken the lock of the gate and despite reporting the incident to police, no steps were taken by the police, consequently application paper no. 19C was filed by the plaintiff for implementation of the order dated 08.03.2016 on the spot through police force for ensuring the status as on 08.03.2016 of the property.

29B. That application paper no. 19C remained pending for long and could be disposed of finally vide order dated 26.02.2024 resulting in its dismissal observing that since temporary injunction application of both parties have been disposed of directing maintenance of status quo vide order dated 21.09.2022, the said order has overriding effect over order dated 08.03.2016. The plaintiff has filed Civil Revision No. 28 of 2024 against order dated 26.02.2024 before Hon'ble High Court of Uttarakhand, Nainital, and the same is pending.

29C. That in the separate proceedings initiated under Order 39 Rule 2A CPC by the plaintiff against the defendant for violating the interim order dated 08.03.2016, defendant was held guilty of willful disobedience of the order dated 08.03.2016 vide final order dated 04.10.2021 passed in Misc. Case No. 15 of 2016 sentencing him to undergo civil imprisonment for a period of one month. The application for recalling and setting aside the said final order dated 04.10.2021 filed by the defendant was also rejected vide order dated 22.08.2022. Defendant preferred AO No. 337 of 2022 against the said order dated 22.08.2022 before Hon'ble High Court of Uttarakhand, Nainital and AO No. 7 of 2023 alongwith delay condonation application against final order dated 04.10.2021 and the same are pending. The said final order dated 04.10.2021 is operative and binding upon defendant.

29D. That as such defendant taking law in his hands made frivolous unsuccessful attempt to grab the property just to raise voice on the basis of his frivolous defence regarding possession, and caused damage to the plaintiff for which defendant is liable to compensate the plaintiff.

29E. That in the aforesaid circumstances, it has become inevitable for plaintiff to seek appropriate relief in the facts and circumstances of the case for protection of rights of plaintiff in the light of the aforesaid subsequent events and in the interest of justice.

B) That in paragraph No. 30 of the plaint, in the ninth line, after the words possession thereof from the plaintiff, and before the words all within the jurisdiction of this learned Court, following be added: -

"and thereafter when the defendant committed illegal act in violation of the interim injunction order and caused loss and damage to plaintiff and when the application paper no. 19C of plaintiff was disposed of and dismissed vide order dated 26.02.2024.

C) That paragraph no.31 of the plaint be deleted and be substituted as under: -

'31. That suit for the purpose of Court fee and jurisdiction is valued at Rs.36,50,000/-.

Relief (a) is valued at Rs.18,00,000/- and the relief being for permanent injunction, maximum Court fee of Rs.500/-is being paid.

Relief (b) is valued at Rs.18,00,000/- and relief being for injunction, maximum Court fee of Rs.500/- is being paid.

Relief (c) is valued at Rs.50,000/- on which Court fee of Rs.4,157.50 is being paid.

D) That in paragraph no.32, existing relief b) be re-numbered as "d)" and existing relief c) be re-numbered as "e)" and following new relief be added after relief a): -

"b)

A decree of mandatory injunction be passed in favor of the plaintiff and against the defendant, directing defendant to ensure status of property in suit to remain maintained as of date of institution of suit ensuring safety of life and liberty of plaintiff being lawful owner of property in suit further ensuring plaintiff's unfettered possession, right and freedom to retain and maintain the property in dispute.

c)

A decree for realization of damages be passed in favor of plaintiff and against defendant directing defendant to pay sum of Rs.50,000/- as damages to plaintiff for causing damage to the gate of plaintiff's property."

“A) That after paragraph No. 29 of the plaint and before paragraph no. 30, following new paragraph be added:-

29A. That after the incident dated 09-03-2016 of violating the ad-interim injunction order by defendant, which was reported to Hon’ble Court vide application paper no. 19C dated 14-03-2016 by plaintiff, defendant is misrepresenting the fact regarding possession over disputed property, which is also evident from contents of his written statement.

29B. That in order to avoid any technicality, it would be just and proper for plaintiff to seek alternative relief in the suit regarding possession cause of action whereof accrued to plaintiff post 09-03-2016. The alternate relief sought is within limitation in view of Article 64 of the Limitation Act, 1963.

29C. That as such it would be expedient in the interest of justice that alternate relief of decree of possession be granted to plaintiff in case Hon'ble Court comes to the conclusion that plaintiff is out of possession.

B) That paragraph no. 31 of the plaint be deleted and be substituted as under: -

31.

That suit for the purpose of Court fee and jurisdiction is valued at Rs. 18,00,000/- on which maximum court fee of Rs. 500/- for decree of permanent prohibitory injunction is paid and for alternate relief, on thirty times of annual value of the property assessed by municipality i.e. Rs. 2250/- per annum which comes to Rs. 67,500/-, on which court fee as per law is being paid.

C) That after relief a) and before b) following alternate relief be added:-

Or in alternate

In case Hon'ble Court comes to the conclusion that plaintiff is out of possession, a decree for possession be passed in favour of plaintiff and against defendant, directing defendant to hand over actual, physical and vacant possession of the property in suit to plaintiff."

“1[17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.]”

“12.

In order to consider whether the appellant-plaintiff has made out a case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads as under:

“17.

Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.

13.

To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.”

12.

This Court in M. Revanna v. Anjanamma [M. Revanna v. Anjanamma, (2019) 4 SCC 332 : (2019) 2 SCC (Civ) 338] opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order 6 Rule 17CPC prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Para 7 thereof is extracted below : (SCC p. 335)

“7.

Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.”

“10.

It is well settled that the scope of Section 115 Code of Civil Procedure, 1908 is limited. We may refer to a few pronouncements:

10.1

35 years ago, it was observed in Masjid Kacha Tank, Nahan v. Tuffail Mohammed¹⁰, that:

“3.

It is well settled position in law that under Section 115 of the Code of Civil Procedure the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or nonconsideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken, is no ground by the High Court to interfere in its revisional jurisdiction.”

10.2

The Constitution Bench in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh¹¹, while dealing with this very question of the scope of revisional power in the context of rent acts, particularly in issue therein held as under:

"...Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."

10.3

A three judge Bench of this Court in Ambadas Khanduji Shinde v. Ashok Sadashiv Mamurkar¹², while dealing with a landlord-tenant dispute observed as under:

'14. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction under Section 115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate courts. Under Section 115 of the Civil Procedure Code, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial court."