CMPMO/102/2016 on 28 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CMPMO No. 102 of 2016.

Decided on: 28.12.2016.

Tara Devi

……Petitioner.

Versus Pawan Kumar

…….Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting? 1. No. For the petitioner: Mr. Suresh Kumar Thakur, Advocate. For the respondent: Mr. Umesh Kanwar, Advocate. -------------------------------------------------------------------------------------------- Justice Dharam Chand Chaudhary, J (Oral).

Order dated 28.10.2015 passed in an application under Order 6 Rule 17 CPC registered as CMA No. 240-VI/2014 ( in C.S. No. 221/2011) by learned Civil Judge (Sr. Divn.), Lahaul & Spiti at Kullu is under challenge in this petition.

2. It is seen that learned trial Court, on appreciation of the facts and circumstances and taking into consideration the law laid down by this Court, has declined the permission as sought for amendment in the plaint. The petitioner (hereinafter referred to as the plaintiff) seeks following amendment in the plaint: “5A. That during the pendency of the suit i.e. in the first week of January, 2013, the defendant forcibly dispossessed the plaintiff from the suit land by forcibly taken possession by the defendant and as such, the defendant is in illegal possession of the suit land and in such view of the fact, the plaintiff is also entitled for decree of possession in the alternative. 10 (ci) in the alternative, a decree for possession of the suit land directing the defendant to hand over the possession of the 1 Whether reporters of the local papers may be allowed to see the judgment?

suit land in favour of the plaintiff, which the defendant has forcibly taken during the pendency of this suit, may also be passed in favour of the plaintiff and against the defendant.”

3. The suit has been filed for seeking declaration to the effect that father of the plaintiff Sh. Uttam has died intestate, leaving her behind the plaintiff alone as his legal heir and that it is she who has inherited the estate left behind by her deceased father. However, mutation No. 841 of his estate on the basis of registered “Will” dated 5.6.1984 in the name of respondent (hereinafter referred to as the defendant) is illegal, inoperative, null and void and hence not binding on her. The entries showing the defendant owner-in-possession of the suit land have also been sought to be declared illegal, null and void. As a consequential relief, the defendant has been sought to be restrained from causing any sort of interference and alienating the suit land on the basis of wrong revenue entries in any manner, whatsoever.

4. Except for that the defendant started causing interference over the suit land on 1.9.2011, on the basis of forged and fictitious Will, nothing has come on record that the plaintiff is in possession of the suit land. In her cross-examination, while in the witness-box as PW-1, it has been admitted that after the death of her father late Sh. Uttam Ram, it is the defendant who is in possession of the suit land.

5. Prima-facie, it is the defendant who seems to be in possession of the suit land. The plaintiff, therefore, should have sought the decree for possession also in the suit. Now, by way of amendment, she cannot be permitted to seek the decree of possession of the suit land that too without there being any reasonable and plausible explanation as to what prevented her from seeking such relief at the time of institution of the suit and even thereafter also before the trial commenced.

6. Now, the suit is at its fag end, being listed for arguments vide order dated 2.3.2016. It is on account of staying of further proceedings in the suit, disposal thereof has been delayed.

7. True it is that after commencement of the trial of suit, the prayer for amendment can be entertained and allowed, however, as per the proviso to Order 6 Rule 17 CPC, only if the Court is satisfied with the explanation if any set forth in not seeking amendment in the pleadings before the commencement of the trial. The application, however, discloses no explanation in this regard what to speak of reasonable and plausible explanation. Otherwise also, allowing amendment, at this stage, would change the nature of the suit substantially which also is not legally permissible.

8. Being so, this petition, being devoid of any merits is dismissed. The interim order dated 28.3.2016 shall stand vacated. The parties through learned counsel representing them are directed to appear in the trial Court on 21.1.2017. The petition is accordingly disposed of.

December 28, 2016,

( Dharam Chand Chaudhary ), (karan)

Judge.