Tej Kawal Singh @ T.K. Singh vs Smt. Hardip Kaur and others

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 20.01.2005 (Annexure P-1) passed by the learned Civil Judge (Jr. Divn.), Jalandhar whereby application for amendment of the petition has been allowed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondents no. 1 to 3/petitioners filed petition for declaration of consideration of movable property described in the headnote of the petition for transferring interest between the co-sharers being highest bidder as a preferential right u/s 22 of the Hindu Succession Act (in short "the Act"). During the said proceeding, an application for amendment of the petition was moved by respondents no. 1 to 3-petitioners before the trial Court and the said application was allowed by observing that it will not change the nature of petition, nor the same shall set up a new case. The petitioner-defendant no. 1 has impugned the said order in the present civil revision petition alleging that petitioner had filed written statement before the trial Court taking a specific plea that the petition filed in the trial Court is not maintainable in the form in which it was moved. Only regular civil suit is maintainable. It was further averred that the property in question had been sold to one Kulwant Kaur wife of Gurdev Singh, who is a necessary party, but has not been impleaded. Furthermore, the sale deed has not been challenged. It is the stand of the petitioner-defendant no. 1 before the trial Court that late Sh. Diwan Singh executed a Will in favour of his wife-Smt. Pritam Kaur, who further executed a Will in favour of her sons-Amarjit Singh, late Harjit Singh. Hence, the property has been devolved as per the Will, as Diwan Singh did not die intestate. As per the Will of Smt. Pritam Kaur, the property went to Amarjit Singh and late Harjit Singh. The present petitioner entered into an agreement to sell dated 2.11.1999 and had sold the property.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner has vehemently contended that application for amendment is not in consonance with the amended provisions of the CPC. It has been further contended that application Simpliciter u/s 22 of the Act is not maintainable, only remedy for the aggrieved party is a civil suit. The learned counsel has further contended that the trial Court has committed a material irregularity in entertaining the petition and the same is not maintainable. By allowing the amendment, the petition has been virtually converted into a civil suit. The learned counsel has relied upon case laws titled Smt. Shobha Rani and Another Vs. Shri Parshotam Dass and Others, and Atam Prakash Vs. State of Haryana and Others,

Per contra, learned counsel for respondent no. 1 has contended that the impugned order is legal and valid. The petition before the Civil Court is maintainable u/s 22 of the Act.

I have considered the rival contentions of learned counsel for the parties.

The first substantial question which needs to be answered by the trial Court was that whether petition u/s 22 of the Act is maintainable and is a remedy available to other co-sharers to enforce their preferential right to acquire the share of other co-sharers. The next issue is with regard to the amendment of the petition. Whether by way of amendment, the petition stands converted into a suit. This Court having considered the provisions of law is of the view that the Court should look into the fact whether Civil Court is competent to entertain a petition u/s 22 of the Act and such a petition is maintainable in the present form as presented before the Civil Court. Since the petitioner has taken the preliminary objection in his written statement/reply with regard to maintainability of the petition before the Civil Court, then it was incumbent upon the Civil Court to decide the issue of its maintainability and thereafter, the trial Court was required to look into the fact whether it was obligatory on the part of the trial Court to afford an opportunity to the respondents no. 1 to 3-petitioners (herein) to move an application for amendment to convert into a civil suit.

In the light of these facts and pleadings, this Court is of the view that the matter needs to be remanded to the trial Court for decision firstly on the issue of maintainability of petition u/s 22 of the Act in the form in which it was presented and thereafter to consider and decide about the amendment of the petition in pursuance to the application for converting the same into a civil suit. Without going into further merits of the case, the impugned order dated 20.01.2005 (Annexure P-1) is set aside and the case is remitted to the trial Court for decision firstly on the issue of maintainability of petition u/s 22 of the Act in the form in which it was presented before it and in case the petition is found maintainable then to consider and decide the amendment application. Parties through their counsel are directed to appear before the trial Court on 02.09.2013.

Disposed of in above terms. No order as to costs.