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Punjab-Haryana High Court
M/S Malibu Estate Pvt Ltd vs Shubhram And Ors on 24 March, 2021 1
(Heard through Video Conferencing)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-6503 of 2017 (O&M)
DATE OF DECISION: 24.03.2021
M/s Malibu Estate Pvt. Ltd.
…Petitioner
Versus
Subhram & Ors.
…Respondents
CORAM : HON’BLE MR. JUSTICE ARUN MONGA
Argued by :Mr. Anurag Jain, Advocate with
Ms. Preeti Taneja, Advocate
For the petitioner.
Mr. Sanjiv Aggarwal, Advocate
For respondents.
***
ARUN MONGA, J.(ORAL)
1. Petitioner Company (defendant No.1 in the suit) is aggrieved
by an order dated 01.08.2017(Annexure P-5) passed by the learned trial
Court whereby amendment of the plaint has been permitted. Amongst
others, one of the grievances of the petitioner is that the same has been
permitted not only highly belatedly being barred by limitation as per
Article 58 of the Limitation Act, but even otherwise it seriously
prejudices the defendants having been permitted at the fag end of the trial
when defendants were about to close their evidence and the matter was
almost ripe for final arguments.
2. Before adumbrating further, a succinct narrative leading to
the instant proceedings. For the sake of convenience, parties are being
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referred herein as per their status in the plaint before the trial Court
proceedings.
3. Plaintiffs originally filed a civil suit, inter alia, seeking
declaration to the effect that they are co-sharers/ co-owners to the extent
of 1/4th share in the suit land comprising in khewat No. 62, khatoni
No.68, rectangle No. 2, killa No. 14/2(2-4) as per jamabandi for the year
2003-04 situated within the revenue estate of village Fatehpur, Tehsil and
District Gurgaon. Further prayer for grant of decree qua partition and
possession of their 1/4th share has also been sought in the civil suit.
While, at the same time, a cross-suit has been filed by defendant No.1
Company seeking specific performance of the collaboration agreement
dated 15.04.2004 executed with plaintiffs qua the same suit land wherein
they have sought declaration to uphold the collaboration agreement and
its consequential specific performance in respect of same very 1/4th share
in the suit land, which has been described as Rectangle No. 12, killa Nos.
14/2(2-4) and 17(2-2) stated to be owned by the plaintiffs.
3.1 Long and short, in both the suits it is the same land which is
under lis. In fact it would be apposite to reproduce the prayer clause of
both the suits viz. one filed by respondents herein for declaration and
second one for specific performance filed by petitioner Company,
respectively, herein below:-
Suit filed by respondents:-
“10. That the plaintiffs pray that a decree for declaration
to the effect that the plaintiffs are co-sharer and co-owner in
possession of 1/4th share of the above said land mentioned in
para No.1 of the plaint and their share be separated by
partition and with permanent injunction as a consequential
relief restraining the defendants from alienating, making
any construction and changing the nature of the suit
property and also from interfering in the peaceful
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possession of the plaintiff, be passed in favour of the
plaintiffs and against the defendants with costs.”
Suit filed by petitioner Company
It is, therefore, humbly prayed that in the interest of justice
your Honour may very kindly be pleased to pass a decree for
declaration to the effect that plaintiffs are exclusive owners
in possession of the land bearing Rect. no. 12, killa nos.
14/2(2-4), 17 min North (1-0.5); that defendants have got
absolutely no right, interest or title therein and the revenue
entries showing the land bearing Rect. no. 12, killa nos.
14/2(2-4), 17(2-2) as joint are illegal, invalid, incorrect and
not binding on the plaintiffs; that judgment and decree dated
26.9.87 passed in suit no. 846/1987 by Senior Sub Judge,
Gurgaon in suit titled ‘Subh Ram and another Versus Smt.
Dharam Kaur etc.’, consequent mutation no. 1116 and other
revenue entries on their basis are also totally incorrect,
baseless, untenable, void abinitio, nonest, nullity and not
binding on the plaintiffs with consequential relief of
permanent injunction restraining the defendants, their
agents, servants and persons claiming through or under
them from taking forcible possession, dispossessing the
plaintiffs, ousting the plaintiffs in any manner or otherwise
interfering in their peaceful use and enjoyment of the land
bearing Rect. No. 12, killa no. 14/2 (2-4), 17 (2-2) or
alienating any part of the aforesaid land and also from
selling, leasing mortgaging or creating any third party
rights and also a decree for specific performance in respect
of the land bearing Rect. no. 12, killa no. 17 min South (1-
1.5) and in case the oral private partition is not proved, in
that event a decree for specific performance regarding 1/4th
share of the defendants in the land bearing Rect. no. 12,
killa nos. 14/2 (2-4), 17 (2-2) situated in the revenue estate
of Fatehpur, Tehsil and District Gurgaon may kindly be
passed in favour of the plaintiffs and against the defendants
with costs subject to incurring stamp, registration and
miscellaneous expenses by plaintiff no. 1. Defendants may
kindly be directed to execute and get registered sale deed
regarding the aforesaid land in favour of plaintiff no. 1.
Without prejudice to the rights of the plaintiffs in any
manner, it is respectfully alternatively submitted that in case
the defendants somehow succeed in taking forcible
possession or dispossessing the plaintiffs from any part of
the land bearing Rect. no. 12, killa nos. 14/2 (2-2), 17 (2-2),
in that event a decree for mandatory injunction / possession
regarding such portion may kindly be passed in favour of
the plaintiffs and against the defendants. Costs of the suit be
also awarded to the plaintiffs. Without prejudice to the
rights of the plaintiff no. 1 in any manner, it is further
respectfully alternatively submitted that in case this Hon’ble
Court comes to the conclusion that for some reason the
specific performance of the aforesaid agreement of sale
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between plaintiff no. 1 and defendants cannot be ordered,
only in that event plaintiff no. 1 alternatively prays that a
decree for recovery of Rs. 11,42,200/- besides damages
caused to the plaintiffs due to non-performance of the
agreement of sale by defendants alongwith interest at the
rate of 18% per annum with effect from 18.6.2004 till date of
repayment alongwith future interest at the rate of 18% per
annum from the date of suit till realization may kindly be
passed in favour of plaintiff no. 1. Any other relief which this
Hon’ble court deems appropriate and suitable be also
granted to the plaintiff.”
3.2 A perusal of both the prayers in the un-amended suits would
show that no doubt in the suit filed by the plaintiffs, killa No. 17(2-2) is
not stated though on the other hand defendant No.1-Company in the suit
for specific performance filed by it, is seeking the performance from the
respondents herein, with regard to killa No.17(2-2), which only shows
that company admitted that at the relevant time respondents had title qua
the said killa No.17(2-2) and the same has to pass on to defendant No.1
Company pursuant to the collaboration agreement. However, since the
respondents herein later backed out from performing their part of
agreement/ collaboration agreement, hence the suit for specific
performance.
3.3 Merits of the suit for specific performance are not relevant
and what is relevant here is that the land in question is the same in the
suit for specific performance as well as in the suit for declaration filed by
the respondents. It was perhaps keeping the same in mind that subject
matter of the property being same as well as parties also the same, both
suits were consolidated vide a judicial order passed by this Court in
separate proceedings. Thereafter, both the cases are being tried jointly.
3.4 In the aforesaid background, plaintiffs filed an application
dated 13.07.2017 stating therein that due to clerical/ typographical
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mistake which came to notice of their counsel, though belatedly but was
admittedly a serious mistake, and could not be noticed at the time of
filing of the plaint, therefore, same needed to be corrected by way of
amendment by incorporating killa No.17(2-2). To be noted, relevant
revenue record qua declaration of 1/4th share was already appended along
with suit wherein aforesaid killa No.17(2-2) wherein it is clearly
mentioned in the relevant column showing the respondents herein as the
owners/ co-sharers to the extent of 1/4th share.
3.5 The said amendment was opposed tooth and nail before the
trial Court but the objections filed by defendant No.1 Company did not
find favour with the trial Court and hence the impugned order.
4. I have heard rival contentions of both the counsel and I do
not find any material irregularity or any other fault with the order passed
by the trial Court, assailed in these proceedings. No interference qua the
same is warranted for the reasons stated hereinafter.
5. The first and foremost objection qua the amendment is that
same is barred by Limitation Act. There is no quibble as regards the
proposition of law canvassed by learned counsel for the petitioner herein,
that something which stands extinguished or forfeited by operation of law
and/ or passage of time cannot be revived at a later stage and the
limitation cannot be extended. A relief available to the litigant, though
available earlier but not sought, the same by operation of law/ limitation
would stand extinguished. I am in agreement with the said proposition
strenuously argued by learned counsel for the petitioner. However,
present is a case of a clerical error where the plaintiffs, in no uncertain
terms, have made following recitals in the very first para of his plaint:-
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“That the plaintiffs are co-sharer, co-owner in possession of
1/4th share of land comprising in Khewat No.62, Khatoni
No.68, Rect. No.12, Killa No.14/2(2-4) situated within the
revenue estate of village Fatehpur, Tehsil and Distt.
Gurgaon vide jamabandi year 2003-2004. Copy of
jamabandi is enclosed herewith.”
6. A perusal of above leaves no manner of doubt that plaintiffs
are seeking declaration of 1/4th share of the land as per the revenue
entries in the jamabandi at the time of filing of the suit, wherein it is
stated to be the land located in Khewat No. 62, Khatoni No.68, Rectangle
No.12, Killa No.14/2(2-4), total measuring 04 kanal 06 marlas.
7. In the premise, neither the amendment changes the area of
the land nor its location nor even otherwise in terms of the share of the
plaintiff which would remain confined to 1/4th as per the original suit.
Therefore, to say that the claim of the plaintiffs is barred by time is
highly inappropriate as the plaintiffs at the time of filing of the suit claim
themselves to be co-owner/ co-sharer to the extent of 1/4th share qua the
same very land for which they had entered into collaboration agreement
with the defendant Company.
8. Even otherwise, as per the contents of application for
amendment, plaintiffs do not at this stage seek to adduce any additional
evidence qua the amendment.
9. Another aspect, not to be overlooked is that before entering
into agreement for specific performance the defendant had carried out
due diligence to ascertain the claim of the plaintiffs qua 1/4th share and,
therefore, it proceeded for specific performance thereof. Defendant No.1
Company claimed to have acquired the rights in the suit land from
respondents herein and it is but natural that only if they had a title
therein, then only they could have further passed it on to defendant No.1
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Company. It was in this peculiar circumstance that trial Court observed
as below:-
“5. Admittedly, the suit was filed on 29.01.2020. The
present suit is for seeking declaration, partition and
permanent injunction. The Jamabandi, which is Ex.P4 on
the file shows the parties to the suit as owners in column
No.5 and I column No.7, both killa Nos. 14/2 and 17 are
mentioned and the total land measuring is 4 kanal 6 marla.
The relief of declaration is intrinsic in the relief for
partition. In any suit for partition, if decreed the parties to
the suit are declared as owners of their respective shares.
The plaintiffs have undertaken in the application itself that
they would not lead any evidence. The proposed amendment
will not enlarge the scope of the suit rather they will
complete its scope of the suit rather they will complete its
scope as in a suit for partition the entire subject matter must
be included. The proposed amendment does not introduce
any fresh cause of action nor does it change the nature of
the suit. No doubt the application is belated as the omission
sought to be rectified persisted for about 7 years. Such a
glaring oversight of the plaintiffs is also astonishing.
Nevertheless, the plaintiffs cannot be precluded for
correcting the error as due to this lapse of time no right has
accrued in favour of the defendants. However,
inconvenience in facing such an application at a belated
stage can always be compensated by way of costs.”
A perusal of the above would show that proposed
amendment neither changes the nature of the suit nor it entertains any
fresh cause of action though the same is no doubt at a belated stage for
which trial Court has rightly observed that delay in amendment does not
reciprocal legal right in favour of defendant No.1 Company. The said
amendment by any stretch is not hit by Article 52 of the Limitation Act.
10. As regards the reliance placed by learned counsel for the
petitioner on Apex Court judgments rendered in Khatri Hotels Private
Limited & Anr. Vs. Union of India & Anr.1 and Shiv Gopal Sah @
Shiv Gopal Sahu Vs. Sita Ram Saraugi and others2, the same seems to
be on a misplaced understanding that the case of the respondents herein is
1
Civil Appeal No.7773 of 2011 arising out of SLP (C) No. 22126 of 2009 decided on 09.09.2011
2
Civil Appeal No.1700 of 2007 arising out of SLP(C) 1729 of 2006 decided on 30.03.2007
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barred by limitation. Both the aforesaid judgments lay down a
proposition of law which no doubt would have been applicable to the
case of the petitioner Company had it been a case of amendment being
barred by limitation. Even otherwise, the explanation given in the
aforesaid cases for seeking amendment did not find favour with Apex
Court as the same was not only belated, but was also sought to be done
only after opposite party brought forward the lacuna in the course of trial.
Instant is a case where no such advantage is being taken by the plaintiffs
as at the time of filing of their suit for declaration of 1/4th share of land,
such a prayer was already there on record. As observed earlier, they are
not changing the nature of claim and wants to incorporate only recitals/
killa number of the land which by inadvertence they omitted to mention
at the time of filing of the suit.
11. On the flip side, in case the proposed amendment is not
allowed, I am in agreement with arguments of learned counsel for
respondents that respondents-plaintiffs would be highly prejudiced on the
ground of partition proceedings being rendered nullity due to omission of
said killa number as the same would lead to mere partial partition qua the
1/4th of the joint land in which the plaintiffs claim their ownership, while
on the other hand, if amendment is allowed, no prejudice would be
caused to the petitioner Company herein as the same would not lead to
any further delay as the plaintiffs themselves have made statement before
the trial Court that they would not be adducing any additional evidence
qua the amendment. Accordingly, on conclusion of defendant’s evidence,
the suit can proceed further as before.
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12. In the parting it would also be worthwhile to observe that
plaintiffs are not seeking any amendment in the contents of plaint other
than addition of omitted killa number 17(2-2) in the head note of prayer
clause of plaint and, therefore, ordinarily no amended written statement is
required, since there is no change to the facts. However, it is left open for
the trial Court to decide at an appropriate stage in case any such
eventuality arises.
13. Revision petition stands dismissed.
(ARUN MONGA)
24.03.2021 JUDGE
Jiten
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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