High Court
Case Details
Court No. - 6 Case :- CIVIL REVISION No. - 13 of 2021 Revisionist :- Navin Agrawal Opposite Party :- Smt. Sonal Garg And 6 Others Counsel for Revisionist :- Raj Kumar Kesari Counsel for Opposite Party :- Ashish Kumar Singh,Yogendra Pal Singh Hon'ble J.J. Munir,J. This Civil Revision under Section 115 of the Code of Civil Procedure (for short the ‘Code’) is directed against an order of the Civil Judge (Senior Division) – 1st, Hapur dated 07.12.2020 passed in O.S. No. 16 of 2018 declining the defendant- revisionist’s application seeking amendment to the counter claim.
Legal Reasoning
Heard Mr. Raj Kumar Kesari, learned Counsel appearing for the revisionist and Mr. Yogendra Pal Singh, learned Counsel appearing on behalf of respondent Nos. 1, 2 and 3. Perused the records. O.S. No. 16 of 2018 was instituted by the plaintiff-respondents first set against the defendant-revisionist and the defendant- respondents Nos. 4 to 7 seeking relief of partition of the suit property mentioned in Schedules A and B to the plaint. It is common ground between the parties that the plaintiff- respondents, the defendant-revisionist and the defendant- respondents are descendants of a common ancestor, one Ram Kumar. The plaintiff-respondents have instituted a suit for partition, asking the Court to determine shares of all the parties to the suit and then separate it by metes and bounds, delivering khas possession. In the two schedules of the suit property given at the foot of the plaint, there is a house bearing No. 585, Gali No. 1, Mohalla Krishna Nagar, Swarg Ashram Road, Hapur in Schedule A and in Schedule B, is a shop situate at premises No. 143, Ward No. 35, Mohalla Nai Mandi, Pakka Bagh, Hapur. This is all that makes for the suit property, subject-matter of the suit. The revisionist, who is defendant no. 1 to the suit, has filed his written statement, which includes a counter claim. The written statement together with the counter claim was moved on 26.05.2018. The revisionist claimed a half share along with the plaintiff in the suit property. By an amendment application dated 03.03.2020, the defendant-revisionist has sought to amend his counter claim to include in the suit property subject- matter of the counter claim for partition, a rented shop held by Raj Kumar as a tenant, situate at Gandhi Road, Keshav Ram building, Pilkhua, Tehsil Dhaulana, District, Hapur. Some necessary averments to support this relief have been sought to be incorporated in the counter-claim by adding paragraphs 19 अ, 19 ब and 22 अ as well. This amendment to the counter- claim was objected to by the plaintiff. The Trial Court, by the impugned order has rejected the amendment sought in the counter claim. Upon hearing learned counsel for the parties, this Court finds that the Trial Court has largely proceeded to reject the amendment application on the ground that the suit is now ripe for address of arguments and at this stage permitting the defendant-revisionist to introduce the amended pleas and relief to the counter-claim would be barred by the proviso to Order VI Rule 17 of the Code. The Trial Court has also remarked that the facts now sought to be brought on record by the defendant- revisionist, were well within his knowledge to begin with. Mr. Kesari, learned Counsel appearing for the revisionist submits that the approach of the Trial Court is fundamentally flawed. The suit is one for partition, where every defendant and not only the plaintiff is in the position of a plaintiff. It is a suit where every party’s share in the suit property is to be determined and then partitioned by metes and bounds. It is urged that the fact that the defendant-revisionist was aware about the existence of a tenanted shop to begin with, cannot be characterized as relevant under the proviso to Order VI Rule 17 of the Code, because knowledge of the fact about the existence of the tenanted shop, originally held by Raj Kumar Singh is not enough. What comes in here essentially is also the necessary legal advice that the tenancy rights could also be the subject- matter of partition in the same suit. It was largely on account of this lack of understanding about the position of the law, that the defendant-revisionist did not apply within time. Mr. Yogendra Pal Singh, learned Counsel appearing for the plaintiff-respondents has opposed the aforesaid submissions and said that it is nothing but an endeavour to delay conclusion of the trial. Nevertheless this Court must remark that the learned Counsel for the plaintiff-respondent does not deny that the shop which the defendant-revisionist wants to introduce in the Hotchpot of the property to be partitioned, is indeed property that the parties have inherited. May be, the parties have a limited right in the tenanted shop, that is to say, the tenant's estate and nothing more. But, it is property nevertheless. All that the defendant- revisionist seeks is a relief in the counter-claim to the effect that his name may also be shown in the said shop as one of the tenants, before the property of Ram Kumar is partitioned. The fact that the defendant-revisionist did not apply earlier when moving the counter-claim, might be based on a different understanding of the law or some misunderstanding about it. However, there does not appear to be any ill-intention on the defendant-revisionist’s part in seeking the amendment that he does to the counter-claim. A suit for partition involves the most fundamental declaration about the parties’ title. It is but desirable that the parties should get an opportunity to include every kind of property of their’s that may fall to be partitioned; be it is their absolute ownership or held by a limited right like tenancy.
Decision
In view of the above facts, this Court is of opinion that this Revision ought to succeed. The Revision succeeds and is allowed. The impugned order passed by the Trial Court dated 07.12.2020 is hereby set aside and reversed. The defendant revisionist’s application paper No. क stands allowed. Let the necessary amendment be carried 58 out to the defendant revisionist’s counter-claim before the Trial Court. It is directed that the trial shall now proceed in the manner that the learned Trial Judge shall fix two dates of effective hearing every week and endeavour to decide the suit within the next two months. Let the lower court records be sent back at once. Order Date :- 13.1.2023 Prashant Digitally signed by :- PRASHANT DWIVEDI High Court of Judicature at Allahabad