HARI SINGH Vs. DALIP SINGH

JUDGEMENT

(1.) This is a civil revision directed against the order dated 21.11.2000 passed by the Additional District, Judge, Bhiwani dismissing the application filed by the plaintiff -petitioner for amendment of his plaint at the stage when his suit stands dismissed and the appeal is pending.

(2.) Brief facts of the case necessary to decide the issues raised in the present revision petition are that the plaintiff -petitioner has filed Civil Suit No. 431 of 1995 on 30.8.1995 seeking declaration to the effect that the plaintiff -petitioner and the defendant -respondents are owners in possession of the suit land being the sons and daughters of Smt. Balma. The claim was based on a registered will dated 27.9.1994. It was further claimed that the judgment and decree dated 1.8.1991 passed in Civil Suit No 586 of 1991 by the Sub Judge, 1st Class, Bhiwani and mutation No. 1015 dated 31.1.1994 sanctioned on that basis by fraud and misrepresentation are liable to be set aside. The suit of the plaintiff -petitioner was dismissed with costs. The plaintiff -petitioner therefore filed Civil Appeal No. 163 of 1997 challenging the judgment and decree dated 3.17.1997.

(3.) It is during the pendency of the appeal before the Additional District Judge, Bhiwani that an application under Order 6, Rule 17 read with Sec. 151 of the Code of Civil Procedure (for brevity, the Code) was filed by the plaintiff -petitioner for amendment of the plaint. By way of amendment, the plaintiff -petitioner intended to challenge the judgments and decrees dated 26.10.1993 and 1.2.1995 on the ground that by mistake the aforementioned judgments and decrees could not be challenged. In the reply filed by the defendant -respondents, it was asserted that both the judgments and the decree dated 26.10.1993 and 1.2.1995 were well within the knowledge of the plaintiff -petitioner and were also produced by him in the trial Court while leading his evidence. It was pleaded that apart from estoppel, by his act and conduct, those judgments and decrees could not be made the subject matter of challenge as the suit if filed on the date of the application under Order 6, Rule 17 of the Code, it would be hit by law of limitation. Therefore, the bar of limitation cannot be permitted to be ignored by allowing amendment and implying that the judgments and decrees were challenged on the date of filing of the original suit i.e. 30.8.1995. The Additional District Judge dismissed the application by relying upon a judgment of the Supreme Court in K. Raheja Construction Ltd. v/s. Alliance Ministries and ors., 1996(1) Civil Court Cases 80 and that order dated 21.11.2000 reads as under: -