VARINDERJIT KAUR Vs. SATINDERJIT SINGH AND OTHERS

JUDGEMENT

(1.) The petitioner has challenged the order dated 11.3.2014, dismissing his application for amendment of the plaint. The case of the petitioner is that she is a Non Resident Indian. She filed a suit for declaration against respondents No.1 to 4 to the effect that she is owner in joint possession of the property mentioned in the head note of the plaint and in the alternative for joint possession along with all sort of construction raised over the land in dispute. It is alleged that the petitioner is the sister of respondents No.1 and 2, who have further sold the land in dispute to respondents No.3 and 4. Respondents No.1 & 2 filed the written statement alleging that their father Inderjit Singh had executed a Will dated 1.6.1982 in their favour and on the basis of the said Will they have become owners of the suit property. Respondents No.3 & 4 filed their separate written statement taking the plea of bona fide purchasers. During the pendency of the suit, the petitioner filed an application for amendment of the plaint to incorporate more facts and the said application was allowed in the year 2012. She filed the amended plaint to which defendants No.1 and 2 filed amended written statement as well. An application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 [for short 'the CPC'] was filed by respondents No.5 to 7 to implead them as parties on the ground that they are also co-sharers in the suit property as Surjit Kaur wife of Inderjit Singh had executed a Will dated 27.3.2002 in favour of respondents No.6 & 7. The application was contested on the ground that the Will dated 27.3.2002 is un-registered. The trial Court vide its order dated 21.11.2013 allowed the application of respondents No.5 to 7 and they were impleaded as parties. It is alleged that during the hearing of the application filed under Order 1 Rule 10 of the CPC, respondent No.5 produced one sale deed dated 14.6.1978 alleged to have been executed by Inderjit Singh father of the petitioner in favour of respondent No.5 (Raaj Anil). After coming to know about the same, the petitioner, who was not aware of the execution of the sale deed by her father made enquiries and came to know that four more sale deeds of the ancestral property have been executed by Inderjit Singh in favour of different persons namely, sale deeds dated 14.6.1978 in favour of Surjit Kaur i.e. mother of the petitioner and in favour of Gurinderjit Singh i.e. brother of the petitioner; dated 22.8.1980 in favour of M/s Surjit Cold Storage and Ice Factory, partnership firm of the family of the father of the petitioner; and dated 26.5.1981 in favour of Satinderjit Singh i.e. brother of the petitioner. After knowing about the sale deeds, the petitioner filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint in order to challenge the four sale deeds as well. The application was contested by respondents No.1 & 2 and 5 to 7 by filing separate replies and the trial Court vide its order dated 11.3.2014 dismissed the application.

(2.) Learned counsel for the petitioner has argued that the petitioner came to know about the sale deeds after the impleadment of respondents No.5 to 7, therefore, the relief in the plaint has to be amended accordingly as the petitioner wanted to challenge those sale deeds as well. It is submitted that there was no delay on the part of the petitioner, who is otherwise a resident of England and as soon as she came to know about the five sale deeds executed by her father out of the ancestral property, in favour of various persons, the application for amendment was filed. To support his statement, reliance has been placed upon a decision of the Supreme Court in the case of "Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgao", 1969 1 SCC 869 in which it was held that amendment should not be refused on technical grounds and if the plaint is allowed then no question of limitation would arise because the plaint must be deemed to have been instituted on the date on which it was originally instituted. He has also relied upon another judgment of the Supreme Court in the case of "Sajjan Kumar Vs. Ram Krishan", 2005 13 SCC 89, in which it was held that incorrect description of suit property in plaint has to be corrected otherwise it would create needless complications in the suit.

(3.) On the other hand, learned counsel for the respondents has submitted that the petitioner has not come to the Court with clean hands and does not deserve any concession. It is argued that out of five sale deeds, three sale deeds are dated 14.6.1978 and the other two sale deeds are dated 22.8.1980 and 26.5.1981. The jamabandi for the year 1983-84 shows ownership of Inderjit Singh, Surjit Kaur, Gurinderjit Singh, Raaj Anil and Satinderjit Singh to the extent of 1/5th share each. Jamabandi for the year 1999-2000 shows 3/5 share of Gurinderjit Singh etc., 1/5th share of Surjit Kaur and 1/5th share of Raaj Anil, whereas the suit was filed on 11.3.2006 relying upon jamabandi for the year 1999-2000 and after making an averment that enquiry from the Halqa Patwari was made on 6.3.2006. It is further alleged that issues in the suit was framed on 17.2.2010 and the application was filed by the plaintiff under Order 40 Rule 1 of the CPC on 18.4.2011 and on the same day another application was filed by the plaintiff under Order 1 Rule 10 of the CPC to implead Punjab State Civil Supplies Corporation Limited (PUNSUP) and the Manager, PUNSUP. On 6.9.2011, reply to the application, filed under Order 40 Rule 1 of the CPC, was filed by the respondents disclosing the aforesaid sale deeds and on 15.10.2012, Ashok Kumar, appeared as PW1, tendered his affidavit in examination-in-chief and was cross-examined as well. On 20.11.2012, Neeraj Sharma PW2 and Varinderjit Kaur PW3 tendered their affidavits in their examination-in-chief, whereas on 20.11.2012 itself first application was filed by the plaintiff under Order 6 Rule 17 of the CPC without any challenge to the aforesaid sale deeds which were already in her knowledge not only because she had been relying upon jamabandi for the year 1999-2000 in the suit filed in 2006 but also the fact with regard to the aforesaid sale deeds came to her notice in the reply to the application filed under Order 40 Rule 1 of the CPC by the respondents. The first application for amendment was allowed on 8.12.2012 and then an application under Order 1 Rule 10 of the CPC was filed by respondents No.5 to 7 on 24.5.2013. Still no application was filed and on 15.1.2014 and the present application under Order 6 Rule 17 of the CPC is filed 8 years after the suit and after 3 years 11 months of the framing of issues, which has been dismissed by the learned trial Court vide its impugned order dated 11.3.2014.