C.R. No. 4380 of 2007 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 4380 of 2007 (O&M)
Date of decision: January 13, 2009
Suraj Mal and others
.. Petitioners
v.
Jagtu
.. Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Vikram Punia, Advocate for the petitioners.
Mr. Rameshwar Malik, Advocate for the respondent.
..
Rajesh Bindal J.
Challenge in the present petition is to the order dated 6.8.2007,
passed by the learned court below, whereby the application filed by the petitioners
for amendment of the plaint was dismissed.
Briefly, the facts are that the petitioners filed a suit for possession by
pre-emption. In the plaint, the pre-emption was sought of the land bearing Khewat
No. 315 Min/237, Khatoni No. 425, Rect. And Kill Nos. 26//22/1 min South (4-0),
30//5/2(5-7), 31//1 min South (2-0), 2(4-12), 41//18/1(4-16) and 24/1(4-9), total
measuring 25 kanals 4 marlas, situated in the revenue estate of Village Nangal
Kalan, Tehsil and District Sonepat.
Learned counsel for the petitioners submitted that inadvertently, as
against Khasra No. 47, in the plaint it was wrongly typed as Khasra No. 41. The
error was not noticed earlier and for that reason, the same could not be corrected,
otherwise the entire evidence in the form of sale deeds and revenue records, which
has been produced by the petitioners on record, is pertaining to Khasra No. 47
only. No doubt, it can be said that it was a case of negligence on the part of the
petitioners, but they cannot be made to suffer on that account for the reason that
the petitioners always depended on their counsel. He further submitted that though
in the written statement filed, correct khasra numbers were mentioned by the
respondents, however, the same also escaped notice. It is only pleadings which are
required to be corrected, otherwise the evidence pertaining to correct khasra
number has already been led. Further submission is that there is no difference in
C.R. No. 4380 of 2007 [2]
any other description of the land mentioned in the suit, such khewat number,
khatoni number and also the area of the land. It was merely one khasra number,
which was mentioned as `41′ instead of `47′ and mere that mistake should not be
considered fatal for the petitioners. Reliance has been placed upon Sodhi Singh
and others v. Basant Singh and another, (1962) 64 PLR 633; Deep Chand v.
Bahadur Chand, (1968) 70 PLR 416; Banta Singh and another v. Smt. Harbhajan
Kaur and others, (1969) 71 PLR 862; Teja Singh and others v. Bhagwan Singh,
1970 PLJ 615; Karam Singh v.Charan Singh and another, 1971 PLJ 615; Hukam
Chand and others v. Sham Lal and others, 1979 PLJ 186; Jagbir Singh and another
v. Ajmer Singh, 1985 PLJ 187; Major Singh and others v. Baj Singh and others,
(1996-1) 112 PLR 518; Satguru Sri Jagjit Singh Ji v. Gurjeet Singh alias
Harcharan Singh and others, 2006(2) CCC 715 and Baldev Singh and others v.
Manohar Singh and another, 2006(3) CCC 573.
On the other hand, learned counsel for the respondent submitted that
it is not a case of mere negligence. At the very first occasion, the respondent had
taken a stand in the written statement, stating that description of the land
mentioned in the plaint is not correct and correct khasra numbers were mentioned.
However, still no effort was made by the petitioners to get the khasra numbers
corrected. Even an application for amendment of the plaint filed on an earlier
occasion by the petitioners, seeking some other amendment, was dismissed. The
petitioners, if aggrieved, should have taken even this part also in the application
for amendment earlier filed. In fact, substantial right has accrued in favour of the
respondent-defendant at this stage as in the absence of claim for pre-emption for
the entire property, the suit itself would not be maintainable on account of partial
pre-emption. The fresh suit would be now time barred. Accordingly, at this stage,
amendment of plaint should not be permitted and there is no illegality in the
impugned order passed by the learned court below.
Heard learned counsel for the parties and perused the record. No
doubt, the suit was filed by the petitioners way back in the year 2002, where while
mentioning the description of the property, one of the khasra number mentioned
was `41′. In the written filed, the respondent had mentioned that correct khasra
number is `47′. In spite of that, no steps were taken by the petitioners to get the
error corrected and the application has been filed at the stage when the suit is fixed
for arguments. However, even with these facts on record, I find merit in the
submissions made by learned counsel for the petitioners for the reason that though
in the plaint, khasra No. 41 has been mentioned. However, it contains the entire
description of the property with its khewat number, khatoni number, total area and
C.R. No. 4380 of 2007 [3]
the location etc. It is also categoric stand of the petitioners that entire evidence led
by them in the suit is pertaining to the correct khasra number, i.e., `47′ and not `41′.
It is only for the reason that inadvertently, the mistake being only difference of
two figures, i.e., `41′ and `47′, it went un-noticed. No doubt, there is lapse, but the
same, in my opinion, is certainly bonafide. Mere delay in filing of the application
under such circumstances cannot be held to be fatal, when the only error in typing
of khasra number in the plaint is sought to be corrected and otherwise the entire
evidence has been led in terms of the correct khasra number and other description
of the property is correct.
Accordingly, while setting aside the impugned order passed by the
learned court below, the present petition is accepted. The amendment application
filed by the petitioners seeking to correct khasra No. 41 to Khasra No. 47 is
allowed subject to payment of Rs. 10,000/- as costs to the respondent-defendant.
(Rajesh Bindal)
Judge
13.1.2009
mk