AHMAD JOO Vs. JAFFAR MALIK

JUDGEMENT

(1.) THE only point that falls for determination in this appeal against the judgment of the District Judge, Kashmir, dated 3rd July, 1956, by which he has remanded the case to the trial Court for a fresh decision after the respondents amend their application for restitution of the mortgaged land is whether the learned Dist. Judge was right in allowing the respondents to amend their application after a period of about seven years when the appellant had acquired a valuable right which could operate as a valid defense for him under the law of limitation. We have heard the learned counsel for the parties who have taken us through the facts of this case. In order to appreciate the point whether the lower appellate Court had properly exercised its discretion under Order 6, Rule 17 of the Code of Civil Procedure in allowing the respondents to amend their Application for restitution of mortgage it is necessary to summaries, in brief, the long and chequered -history of this case. An application for restitution of 31 kanals and 4 Morlasof land situate in Chatragam, Tehsil Badgam, alleged to have been mortgaged by the respondents with the appellant under a mortgage deed dated 13th Assuj, 2005, six khasra numbers of which are specified in the application, was presented on 29th Bhadon, 2007, i.e. about seven years ago. In the objections filed by the appellant on 3rd Maghar, 2007, it was clearly stated by him that it was wrongly entered in the application that 31 kanals and 4 Marlas of land had been mortgaged to him by the Respondents by mortgage deed dated 13th Assuj, 2005. It was further stated that the date of the mortgage deed was 15th Assuj, 2005 and the correct khasra numbers of the land mortgaged, twelve in all, were specified in these objections. On 19th Maghar, 2007, the appellant also put in his documents before the trial Court which included the mortgage deed dated 15th Assuj, 2005 in which the area of land, namely, 43 kanals and its correct khasra numbers were set forth. More than a year after this the respondents put in an amended application for restitution of this land and in this application despite the fact that in the objections correct Khasra numbers had been recorded and in the mortgage deed which had been produced before the Court and which was open to inspection to the respondents and their counsel the area of the land mortgaged, 43 Kanals and correct Khasra numbers had been set forth, the same area and the same Khasra numbers as were given in the original application dated 29th Bhadon, 2007, namely 31 kanals and 4 Marlas consisting of six Khasra numbers and the same date of the mortgage deed, namely 13th Assuj, 2005, reiterated. Nine respondents filed the original application as well as this amended application. Four of these respondents withdrew the application and on 25th Baisakh, 2008 the trial Court, under the mistaken impression that all the respondents had withdrawn the application, dismissed the application. On 30th Assuj, 2008 the District Court. on appeal remanded the application to the trial Cpurt on the ground that the application had not been withdrawn by all the mortgagor respondents.After the remand and further trial, the trial Court on 14th Bhadon, 2010, passed a decree for redemption of 15 kanals and 8 Marlas of land out of the mortgaged land of 31 kanal and 4 Marlas in favour of the Hour respondents specified in the decree -sheet and directed that the rest of the land would remain in possession of the appellant. On appeal the District Court by its order dated 29th Sawan, 2011, held that the trial Court could not split the mortgage & again remanded the case directing that some more points set forth in the judgment should also be got clarified during further trial and afresh decision should be arrived at. The trial court of City Judge, Srinagar, on 24th December, 1955 eventually dismissed the application on the ground that" a mortgage is indivisible and the Court has no power to compel the mortgagee to submit to a piece -meal redemption: From this judgment and decree the respondents went up in appeal to the District Court and there an application to amend the original application so as to include the whole mortgaged land of 43 kanals and specify the correct Khasra numbers thereof was made. The opposite side strongly resisted this application on the ground that so far as the remaining land was concerned the respondents application for restitution had become time barred. The learned District Judge disregarded this objection and made an order as indicated in the beginning of this paragraph.

(2.) AFTER careful consideration of the arguments addressed to us on either side we feel that in the circumstances set out above the learned District Judge has not exercised his discretion properly and his order cannot be allowed to stand. The learned counsel for the respondents has drawn our attention to a passage in Note 2 of Chitaleyâ„¢s Code of Civil Procedure 1950 Edition under Order 0, Rule 17, in which it has been stated that a Court should allow the amendment of a pleading where there has been a clerical error, or a bona fide wrong description of property or where there has been a mistake of law or fact, but the learned counsel has omitted to take notice of the proviso to this proposition which reads "provided there is no injustice to the other side which cannot be compensated by the award of costs" Vide pages 1739 -40. The learned District Judge is completely wrong when he says: "In the present case I find that what the appellants seek to amend is that certain numbers of the mortgaged land as try had been wrongly entered in the application and it was certainly a mere clerical error which should be permitted to be corrected.  As analyzed in the preceding paragraph there is no questiogiven in the Revenue papers had inadvertently not been entered in the application and certain other numbers, which did not form part of the mortgaged propern of an inadvertent mistake in this case. If the learned District Judge had taken the trouble of tracing the history of this case he would not have fallen into this error. Not only in the original application of the mortgagors dated 29th Bhadon 2007 prayer for redemption of only 31 kanals and 4 Marlas of land, whose six Khasra numbers were specified, was made Imt even more than a year afterwards when the amended application was put in on 4th Poh, 2008, redemption of the same area was demanded and the same Khasra numbers had been repeated and this, as already indicated, despite the fact that not only in the objections filed by the appellant mortgagee before the application was amended the correct Khasra numbers of the mortgaged land had been specified but also in the mortgage deed which has been produced in Court correct measurement of the mortgaged land, namely, 43 kanals and its correct Khasra numbers were given. It is too late now for the mortgagors to awake to the realities of the situation. Since 2007 during the course of seven long years the case had been tossed to and fro between the trial Court and the District Court a number of times and yet the mortgagors respondents had never felt that they had committed a mistake. The question for consideration is whether in such circumstances it should not be presumed that what they did was deliberate. In any case where a person applying for restitution of mortgaged property is so grossly negligent, he cannot be allowed to disturb the rights, which the mortgagee may have acquired under the law of limitation. The true principle in this respect is clearly stated in Note. 5 under Order 6, Rule 17 of Chitaleys Civil Procedure Code 1950 Edition, namely, "However negligent or careless the first omission may have been, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. One of the classes of cases in which an amendment will work injustice to the opposite party is where it takes away from a party a right accrued to him by the lapse of time". In this connection Karsondas v. Surajbhan, AIR 1933 Bom 450 A and Lakshmanacharyulu v. Venkataramanuja, AIR 1926 Mad 827 B may be referred to. In AIR 1933 Bom 450 A it is observed: It is settled that in the absence of special circumstances leave to amend ought not to be given where the effect of the amendment is to deprive the opposing party of an acquired right". In AIR 1926 Mad 827 B it was stated: It is a cardinal maxim of the law of amendment not only that you should not amend so as to change the cause of action but you should not amend in such a way as will take away a valid defence under the law of limitation.  We find ourselves in complete agreement with the observations made in these two authorities. The mortgagors who for seven years had asked for a partial redemption of the mortgaged land could not now be allowed to amend the plaint in such a manner as to include redemption of those parts of the mortgaged land in respect of which their right to institute an application under the Jammu and Kashmir Restitution of Mortgaged Properties Act had become barred. We therefore, accept this appeal, set aside the order of the lower appellate Court by which the mortgagors respondents were allowed to amend application for restitution of the mortgage and direct the District Judge to dispose of the appeal on merits after hearing both sides. Costs shall abide the event.

(3.) J . N. WAZIR, C. J.: I agree