Teja Singh and others vs Hamir Singh and others

Chopra, J.—In a suit for possession of agricultural land and a vacant site brought by the petitioners'' collaterals of one Sunder Singh deceased, while challenging both the factum and validity of an adoption alleged to have been made by the latter omitted to state in the plaint that the property was ancestral ''qua'' them. The adoption which amounted to appointment of an heir was effected through a registered deed dated 4-7-2000. The plaintiffs alleged that the appointed was not mentally fit to understand the nature of the document and was too old and infirm to willingly execute it, and on these grounds the factum of adoption was totally denied. The validity of the adoption was also challenged on the ground that it could not be made without the consent of all the reversioners. The suit, which was filed on 27-6-2006 after the death of Sunder Singh in Jeth 2004, was opposed by Hamir Singh, the adoptee, and in the written statement Sled by him on 2-8-2006 it was ''inter alia'' pleaded that the plaintiffs had no ''locus standi'' to challenge validity of the adoption inasmuch as the suit-land was not stated to be ancestral ''qua'' them. On the next day, i.e., 3-6-2006 the petitioners, realising their mistake, applied for an amendment saying that the property was ancestral and that the petition writer had inadvertently omitted to so mention it in the plaint. An effort during evidence was made to prove that the draft from which the petition writer copied out the plaint did so recite it. It was, however, not believed by the trial Judge although he did not finally base his decision on its rejection. He declined to accept the prayer solely on the ground that it would deprive the defendant of a valuable right of limitation that had already accrued to him. This is plaintiffs'' petition for revising that order.

A preliminary objection is taken by Mr. Jagan Nath that the order did not amount to a ''case decided'' under S. 115 C.P.C. and, therefore, no revision was competent. Reliance is placed on a Full Bench decision of the Allahabad High Court in Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, The judgment in which it was held that an order refusing to allow an amendment of a pleading could not be questioned in revision is, no doubt, directly on the point. Mr. Atma Ram, on the other hand, has referred me to an unreported judgment dated 25-8-2003 of the erstwhile Patiala High Court in ''Mst. Harnam Kaur v. Bachan Singh'', Civil Revn. No. 100 of 8-5-2003 in which a contrary view was taken by Hon''ble the Chief Justice deciding the case in Single Bench. On his attention having been drawn to the Allahabad Full Bench case he preferred to follow the view taken in another case previously decided by him, a reference to which was made in the judgment, and also by a Full Bench of his own Court.

The question is whether the order which, no doubt, is an interlocutory one amounts to a ''case decided'' within the meaning of S. 115 C.P.C. Sometimes back there was a good deal of controversy on the interpretation of a ''case decided'' but now it has been held by almost all the High Courts in India that it would not be correct to say that no interlocutory order passed in the course of the suit should be regarded as a case decided. An order which though passed in the suit may nevertheless be an order which decides a case within the frame of the suit. It may be the decision on a substantial question in dispute between the parties affecting their rights. This would depend upon the nature of the order and the circumstances of the case in which it was made. There may, on the other hand, be some purely formal or incidental orders which would not be covered by it. Now it has to be seen under which category an order refusing amendment would fall. I personally think that it falls under the first as it is a decision on a substantial question between the parties and results in shutting out a part of the plaintiffs'' claim. The contrary view adopted i Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, was mostly based on its own previous decisions. The view consistently held by that Court had been that an order allowing amendment could not be made the subject of revision. The Full Bench was of the opinion that there would be an anomaly in holding that if the application is allowed the case is not decided, but if it is not allowed the case is decided. This appears to have led the Court to decide that an order refusing amendment was also not open to revision. The narrower interpretation sometimes placed on a ''case decided'' has been departed from in several later decisions and this Court in particular has been of the view that it is wide enough to include a decision on a substantial question in dispute between the parties that materially affects their rights. The detailed and well-considered judgment of the Full Bench of Lahore High Court in AIR 1943 65 (Lahore) , in which this wider interpretation was accepted as correct, was recently followed by Hon''ble the Chief Justice of this Court in ''Gordhan Das v. Ram Saran Das, 1 Pepsu LR 1. Patiala High Court, of which this Court is the successor, has further been of the view that an order refusing amendment falls under the first category of the two sets of interlocutory orders, and I am in respectful agreement with that view. The objection is, therefore, ruled out.

On merits Mr. Atma Ram vehemently contends that the Court was wrong to suppose that the suit, if brought on the day the amendment was applied for, would be barred by time, and that even if it was, there was no justification for refusing amendment because it did not amount to changing the nature of the suit or adding new cause of action or relief. Mr. Jagan Nath refutes this argument by saying that the amendment would result in changing the nature of the suit inasmuch as in the original plaint the plaintiffs only challenged the factum of the adoption while now they want to dispute its validity as well. He further asserts that since the suit, if brought on 3-8-2006, would be beyond time amendment had been rightly refused. The first thing that has to be seen is what is the nature of the amendment. As already observed the suit was for possession of land left by a male proprietor governed by Customary law on the ground that the plaintiffs were his collaterals and that the adoption alleged to have been made by him had in fact never taken place. It was further clearly alleged that the deceased had no right to make an appointment and that the same was invalid according to custom. This was the nature of the suit the cause of action of which was the right of the plaintiffs to succeed to the estate left by the deceased. The validity of the adoption could be challenged only so far as it affected ancestral property since the deceased had an unrestricted right of disposition over his self-acquired property. By challenging its validity they meant to say that the suit-land was ancestral, but this they omitted to specifically mention in the plaint. The plaintiffs by introducing the amendment do not want to change the nature of their suit or to add any new cause of action. What they want is a clarification of the pleadings and rectification of a clumsy mistake made by the petition writer, which would deny them the right they intended to seek. The amendment is meant to give the right description of the property in suit and not to alter its character. It would not be in consonance with justice to deny them the right to rectify a defect in the plaint which does not affect any substantial change in the right they originally claimed. They should not be penalised for, and deprived of the right because of, the carelessness of the petition-writer. There has been no undue delay in applying for the amendment either. The mistake was brought to the notice of the plaintiffs on 2-8-2006 the day the written statement was filed and they came forward with the prayer on the following day. There should be no objection to allowing an amendment of the kind, which does not introduce a new cause of action or change the nature of the suit, even after the period of limitation for the suit has expired. It is argued that allowing amendment would work grave injustice to the defendants inasmuch as it would deprive them of a valuable right which had accrued to them by influx of time. The validity of the adoption is said to have become immune from being attacked because the period of limitation had already expired. The contention, however, is untenable on two fold grounds. Firstly the validity of the adoption had already been challenged in the original plaint. It may be remembered that it was clearly stated that the adoption was invalid according to custom and that it could not stand in the way of the plaintiffs succeeding to the deceased. The plea, therefore, is not being taken for the first time by the amendment. The property that was to be affected by the adoption was made the subject-matter of the suit. The adoption could be ineffective only with respect to property over which the adaptor had limited power of disposition and that could be the property that was ancestral qua the objector. The amendment, therefore only amounted to a clarification of the nature of the property that was already in dispute, which was in consonance with the intentions of the plaintiffs. A brief reference may here be made to the case cited by Mr. Jagan Nath in support of his argument. In ''Doraiswami Iyengar v. Radhakrishna'', AIR 1938 Mad 669, the plaintiff wanted to take up an alternate case in the amended plaint, which was inconsistent with the case originally set up. In a suit for the price of a pair of diamonds sold to the defendant the latter''s plea was that he only acted as a broker for the sale by the plaintiff to a third person. The plea was accepted by the trial Court and the plaintiff in appeal wanted to amend the plaint so as to hold the defendant liable as a broker. The prayer was rejected on the ground that it amounted to change the specific legal relation taken in the original plaint and also the nature of the suit. The other two authorities Srirangan Chettiar Vs. M. Sornam Pillai and Others, and ''Tipan Prasad Singh v. Secy. of State'', AIR 1935 Pat 86 rather support the case of the petitioners. In AIR 1935 Mad 202 in the petition, as it originally stood, where the acts of insolvency were mentioned the words "with intent to defeat and delay his creditor" were owing to a defective drafting omitted. The object of the amendment was to insert these words so that the requirements of law might be complied with. The amendment was considered to be "of a most formal kind" and allowed. In AIR 1935 Pat 86 the suit was against the Secretary of State and in the plaint no averment regarding a notice u/s 80, Civil P.C., having been served on the defendant had been made. The amendment was prayed on the ground that though the notice had in fact been given the typist by over-sight omitted to mention it in the plaint. The amendment, which had been disallowed by the trial Court was allowed by the High Court on revision.

Again in this case I do not feel satisfied that the suit to challenge the validity of adoption had become time-barred on 3-8-2006 when the amendment was applied for. It is correct that the limitation for such a suit provided by the Patiala Limitation Custom Act (X of 2000) which applies to this case, is six years. According to Article 4 of the Schedule the period begins to run from the ''the date on which the alleged appointment of an heir becomes known to the plaintiff''. The alleged adoption is dated 4-7-2000 and the application was made only a month after the expiry of the period of six years, i.e., on 3-8-2006. In the plaint although the actual date on which the plaintiffs came to know of the document was not mentioned yet it was stated that the deed was got secretly executed at their back and without their knowledge. The plaintiffs might succeed in showing, if they were put to its proof, that they came to know of it more than a month after it was executed. There is, thus, nothing on the record on which it could be definitely held that the period for the relief had already run out.

I do not agree with Mr. Jagan Nath that mere registration of a document amounts to a notice to all the world. Unless there are circumstances from which a presumption could be raised, the mere fact that the deed was registered does not fix the plaintiffs with the knowledge of its execution on that date. From whatever angle it may be viewed the order of the trial Judge, in my opinion, is erroneous.

The next and the last question is whether the order should be interfered with in revision. I can concede that it is not every erroneous order that calls for the exercise of revisional powers, but where the non-interference results in denial of justice or causes an irremediable harm to a party this Court can and must interfere. Refusal to allow amendment in this case would deprive the plaintiffs for ever of their valuable right to challenge an interference in the ordinary rule of succession created by a person whom they would otherwise succeed. This would shut out from them a part of the claim prayed for in the suit. The trial Court did not properly exercise its discretion and appears to have acted under a misapprehension. The order, which is palpably wrong and would result in manifest injustice, must therefore be set aside. The order of the trial Judge, dated 14-6-1950 is set aside and the case is sent back to him with the direction that the amendment should be allowed subject to payment of Rs. 10/- as costs to the defendants. The parties, through their counsel have been directed to appear in the Court of Sub-Judge, 1st Class, Fatehgarh Sahib on 13th November 1950.

In the result the petition is accepted with costs.