JUDGMENT
M.L. Singhal, J.,
1. This revision has been filed by Mange Ram and others under Article 227 of the Constitution of India whereby they have
prayed for the quashing; and setting aside of order dated 22.1.2001 Annexure P-5 passed by Financial Commissioner (Revenue), Haryana (respondent No. 1) and also orders dated 6.10.2000 and 18.9.2000 Annexure P-3 and P-2 passed respectively by respondent No. 2 (Commissioner, Rohtak Division, Rohtak) and respondent No. 3 (Collector, District Panipat), whereby their prayer for amendment had been declined by them. Facts.
2. In the year 1980, suit was instituted under the then existing Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961. The said suit was dismissed on 16.3.99 by Assistant Collector First Grade, Panipat. During the pendency of the appeal before the Collector, Panipat against the said order dated 16.3.99, application for the amendment of the plaint was filed which was dismissed on 18.9.2000. Against the said order dated 18.9.2000, revision was filed by Pala Ram and others which was dismissed by Commissioner, Rohiak Division, Rohtak on 6.10.2000. Pala Ram and others went to the Financial Commissioner challenging the order dated 18.9.2000 of the Collector and that of the Commissioner, Rohtak Division, Rohtak dated 6.10.2000. What weighed with them while dismissing the application of Pal Ram etc. for amendment of the plaint inter alia was the inordinate delay in the filing of the application for amendment. It was felt by all these authorities that if amendments were allowed, that will result in the de novo trial of the suit. Another factor that weighed with them was that through amendment, even substitution of paras 3 and 5, apart from amendment of paras 2 and 4 was also prayed and even the prayer was sought to be amended and if that was allowed to be done, there will be change in the nature of the suit. It was felt by them that under the garb of amendment, change in the nature of the suit was not permissible. Prayer for amendment of the plaint was made about 20 years which was taken to be highly belated and not genuine.
3. Pala Ram and others filed application (suit under Section 13 B, as it was existing then, of the Punjab Village Common Lands (Regulation) Act, 1961 for self and on behalf of the other proprietors of the village in the court of Assistant Collector First Grade, Panipat against the grain panchayat of village Assan Kalan through its Sarpanch in the year 1980. It was averred by them that according to the Jamabandi of the year 1907-08, land measuring 9237 bigha 37 biswas was shamilat deh and was in possession of the proprietors of village Assan Kalan as co-sharers comprising Gurjjars (Both Hindus and Muslims), Muslim, Rajputs and Brahmins. It was alleged in the plaint that in this land Muslim Rajputs had 2 shares, Gujjars and Brahmins had 5 shares, Padho Pana had 2 shares, Rajputan Pana had 2 shares and Gulman Pana had 3 share. This land was never used for common purposes of the village. As per the Jamabandi of the year 1945-46, the disputed land was Nehri, Chahi and Barani. After partition of the country, the Muslim Rajput proprietors left the village and area owned by them as per their share was allotted to the persons who had come on migration to this part of the country from West Punjab and the persons of Madho Pana and Muslim Pana became the owners of the remaining land measuring 8596 bigha 9 biswas. The persons who had come from Pakistan did not have any share in this land and the proprietors of Madho Pana, Glman Pana became owners of 5/7 share. It was further averred that majority of the residents of the village are illiterate and in the revenue record the entry of the land continued as shamilat deh and according to mutation No. 1184 dated 27.12.61, this land was made to vest in the gram panchayat. It was averred that this land does not fall within the ambit of Shamilar deh Mutation No. 1184 is illegal. In lieu of old numbers of consolidation of holdings, land measuring 9029 kanals 16 marlas was carved out. It was prayed that decree be passed in favour of Madho Pana and Gulman Pana regarding land measuring 9029 kanal 16 marla. Assistant Collector First Grade, Panipat framed among others, the following issues:-
1. Whether the land is owned and possessed by the proprietary body of Pana
Madho, Pana Gulman, and Pana Rajputan of village Assan Kalan as co-sharers in the
manner as alleged in para No. 2 of the plaint? OPP
2. Whether the local non evacuaee proprietors remained owners of the land measuring 8596 bigha 9 biswa? OPP
3. Whether the suit land never vested in the shamilat deh? OPP
4. Assistant Collector First Grade, Panipat vide judgment dated 16.3.99 decided these issues in favour of Pala Ram etc. whereby it was held that the land in question is owned and in possession of the proprietary body of the village and that the proprietors are owners of the said land which does not vest in the gram panchayat as shamilat deh. It was further held that the gram panchayat is not in possession of the land and it is the petitioner who are in possession and that land has never been given on lease. Assistant Collector First Grade, however, dismissed the suit of the petitioners on issues regarding mis-joinder of parties etc. Against the judgment of the Assistant Collector First Grade. Panipat dated 16.3.99, Pala Ram etc. went in appeal before the Collector, which is pending. In appeal Pala Ram etc. moved application under Order 6 Rule 17 CPC seeking amendment of the plaint by way of amendment in place of existing para 3 of the plaint, they wanted to insert the following para 3 in the plaint.
“3. That on account of partition of the country, Muslim Rajput proprietors left the village as an evacuee and area owned by them as well as the area equivalent to their share in the land mentioned in para No. 2 was allotted to the displaced persons from the West Punjab and after the allotment of the land to the displaced persons from the ‘Shamilat Den land” which was owned and possessed by the three panas, land that remained measures 3596 bighas 9 biswas after allotment out of total land 9244 bighas 7 biswas. In this way the local non evacuee proprietors (proprietors of Madho Pana and Gulman Pana) remained owners to the extent of 5/7 shares of the total land 9244 bighas 7 biswas which comes to 6603 bighas 2 biswas as shown vide mutation No. 1184 dated 27.12.1961. No shares of the displaced person remained in this remaining land and the local non evacuees (proprietors of Madho Pana and Gulman Pana) remained owners in possession to the extent of their share i.e. 5/6th shares which comes to 11005 kanals but the plaintiffs are claiming illegal vesting of land which is mentioned in para No. 5 of the plaint.”
In para 4 of the plant at its end, the following words were sought to be added:-
“The land does not vest in the gram panchayat Assan Kalan under Section 2(g) of the Punjab Village Common Land (Regulation) Act, 1961 or an other provisions of the said Act.”
In para 5 of the plaint, certain khasra numbers were omitted and certain additional khasra numbers were wrongly mentioned. Through amending para 5, they wanted to mention the correct khasra numbers and delete the khasra numbers which they had mentioned wrongly. In para 5 they wanted to insert that the consolidation proceedings took place in the village and the agricultural land approximately measuring 7523 kanai 9 marla situated within the area of village Assan Kalan vide jamabandi for the year 1977-78 was alleged in lieu of the land as mentioned in para 2 of the plaint i.e. in lieu of old khasra numbers. The suit land and its previous land was never shamilat deh nor was reserved or used for the common purposes of the village community as defined in the Punjab Village Common Lands (Regulation) Act, 1961 as it was not shamilat deh and it could not be vested in the gram panchayat. More over, the evacuee share has been allotted to the displaced persons only for the reason that it was owned and possessed by the evacuee and it is not shamilat deh. For this reason as well, the land in dispute cannot vest in the gram panchayat. They also wished to add the following para in the prayer clause after the existing prayer (A)”.:-
“(AA) A decree for declaration to the effect that mutation No. 1184 is null and void and not binding on the proprietors of Madho Pana and Gulman Pana and the same be ordered to be deleted from the revenue records and the land under suit may be mutated in the names and ownership of the proprietors of Pana Madho and Pana Gulman and further it be declared that the land mentioned in para No. 5 of the plaint
does not vest in the gram panchayat of village Assan Kalan, Panipat under section 2(g) of the Punjab Village Common Land (Regulation ) Act, 1961 or any other section or provisions of the Act.”
5. It was alleged in the plaint that these amendments would not in any manner change the nature and the character of the suit and further it would not cause any prejudice to the other party. Amendments sought to be incorporated are of clarificatory nature and are necessary for the proper adjudication of the real controversy. Collector, Panipat vide order dated 18.9.2000 declined their prayer for amendment of the plaint. Pala Ram went in revision. Commissioner, Rohtak Division Rohtak vide order dated 6.10.2000 declined their revision. They went in further revision to the Financial Commissioner, Haryana which was dismissed vide order dated 22.1.2001.
6. It was submitted by the learned counsel for the petitioners that the law as to amendment of pleadings is very liberal. It was submitted that the amendment sought was only formal and chrificatory in nature. It was submitted that Commissioner, Rohtak Division, Rohtak has observed in order dated 6.10.2000 that most of the amendments sought are just a clarification of the language used in the plaint. By insertion of the words, the language used in the plaint would be further clarified. Change sought is immaterial and makes hardly any difference. As regards detection and addition of some khasra numbers in para 5 of the plaint, the petitioners have every right to forgo their claim with regard to that land by making a statement before the Collector even at the time of final arguments. Commissioner observed that there is no need to delay the matter by making any change in the plaint at this stage. In para 4 of the original plant, the petitioners have explicitly pleaded that the land in dispute has never been shamilat deh as defined in the Punjab Village Common Lands (Regulation) Act, 1961 and mutation No. 1184 dated 27.12.1961 has been wrongly sanctioned in favour of the gram panchayat because the land has been throughout in possession of the proprietors of Madho Pana. In para 8-A of the plaint, the petitioners have claimed decree for declaration to the effect that Madho Pana and Gulman Pana be declared owners in possession of land measuring 9029 kanal 9 marla. This prayer includes the prayer now sought to be inserted. Commissioner further observed that on 6.8.87, the petitioners has moved an application under Order 6 Rule 17 CPC and the amendment was allowed on 4.11.87. Therefore, the parties had been litigating right upto the High Court. Petitioners concealed this all important fact in their present amendment application. The suit is pending since 1980. Keeping in view all these facts, I do not find any illegality or impropriety in the impugned order of the Collector. Dismissed the application even without calling the other party to file reply. He was well within his right to dismiss the application in the manner he did in detailed and reasoned manner.
7. Learned counsel for the petitioners submitted that the proposed amendments should have been allowed as if the proposed amendments are allowed, there would be no change in the nature of the cause of action. In Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 the Hon’ble Supreme Court has observed that provision for the amendment of the pleadings subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience of expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. It is true that if a plaintiff seeks to alter the cause of action itself and not introduce indirectly, through an amendment cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there the Court will refuse to permit if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to
lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which cured of its shortcoming, has really became a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be made necessary conditions, such as payment of either any additional court fees, which may be payable, or of costs, of the absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Court should, ordinarily, refuse prayers for amendments of pleadings.
8. In Ram Chand v Karamvir and Anr., 1982 PLJ 611, a learned Single Judge of this Court observed that amendment of plaint claiming alternative relief, cannot be declined on the ground that a new cause of action would be introduced by proposed amendment. By claiming alternative relief, cause of action is not changed. Delay by itself is no ground to disallow amendment. Amendment of plaint in appeal cannot be declined on the ground that highly belated having made after 8 years of filing of suit.
9. In substance the arguments of the learned counsel for the petitioners was that the proposed amendments of the plaint could not be refused to the petitioners as if they are allowed to be incorporated in the plaint originally filed, there will be no change in the nature of the cause of action nor there will be any change in the substratum of the suit. It was submitted that cause of action will remain the same. Substratum of the suit will also remain the same. In the plaint originally filed, what they have claimed is that this land does not vest in the gram panchayat under the Punjab Village Common Lands (Regulation) Act, 1961 rather this land vests in the proprietors of the village.
10. Learned counsel for the respondents-gram panchayat, on the other hand, submitted that the proposed amendment was sought to be made after a lapse of 20 years. Suit was instituted in the year 1980. It was decided by the Assistant Collector First Grade in the year 1988. In the year 1980, petition under Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 was filed for decision of the question of title of the land in dispute and when the proceedings were pending before Assistant Collector First Grade, Panipat, Civil Suit No. 340 of 1983 titled Raj Singh and Ors. v. Gram Panchayat Assan Kalan for declaration in a representative capacity was filed, in which the ten plaintiffs and others proprietors of the village as owners of the land as mentioned in the plaint. In the suit, three sons of the then Sarpanch were also the plaintiffs. The then Sarpanch Shri Bhola Ram without getting any resolution passed from the panchayat filed a written statement admitting the claim in the suit and subsequently suffered a collusive decree dated 29.4.1983. Thereafter, reliance was placed on this judgment and decree before the Assistant Collector, First Grade in the suit filed under Section 13-B. When this fact came to the notice, a suit and declaration was filed where the judgment and decree dated 29.4.1984 was set aside vide judgment and decree dated 30.3.1992. Against the above said judgment and decree dated 30.3.1992, appeal was filed which was also dismissed vide judgment of decree dated 2.11.1995. In the year 1988 a civil writ petition No. 996 of 1988 was filed in this Court and this Court vide order dated 18.7.1988 directed Tehsildar, Panipat to visit the site and to make a report about the land in dispute. Tehsildar, Panipat vide his report dated 16.8.1988 submitted two lists. The Khasra numbers mentioned in No. 1 are above khasra numbers which are “Charan” and List No. 2 contains the khasra number of “Banjar Qadim” land owned by the Gram Panchayat of
Village Assan Kanal. It was submitted that even after orders passed by this Court in CWP No. 996 of 1988 calling the report of the Tehsildar, some of the persons tried to occupy the other land, It was submitted that about a year back even the trees planted by the Forest Department to whom the Gram Panchayat handed over the land for plantation have been destroyed and forcibly occupied the land by the petitioners as well as by respondent No. 5. In the year 1993, a civil revision No. 1609 of 1993 was filed through one Ram Saran and in that revision petition a prayer was made for directing the Assistant Collector to adjourn the proceedings of application under Section 13-B sine die and keep the same in abeyance. A further prayer was also made that the proceedings under Section 13-B be stayed. Initially the petitioner was able to obtain stay. Stay was vacated by this Court when all the facts were brought to its notice and the revision petition was dismissed vide order dated 31.8.1993. Again a writ petition No. 3986 of 1996 was filed through Darshan Singh etc, again by concealing the true facts and the stay order was obtained. When application under Section 151 was filed all the facts were brought to the notice of Hon’ble Division Bench of this Court, the Hon’ble Division Bench vacated the stay order dated 11.4.94 and the writ petition was dismissed as withdrawn with liberty to file fresh one on the same cause of action if any adverse order was passed against the petitioners. It was submitted that again one Paltu Ram who is now respondent No. 5 and is in unauthorised possession of more than 80 acres of land, filed a civil revision No. 52 of 1997 under Article 227 of the Constitution of India praying that the proceedings pending before the respondent No. 4 Collector in that revision be transferred to some other officer of competent jurisdiction out of the District Panipat and further prayed that during the pendency of civil revision No. 52 of 1997, the proceedings under Section 13-B be stayed. Stay order was obtained without disclosing the true facts. Hon’ble Single Judge of this Court dismissed the petition vide order dated 3.3.98. Again writ petition No. 575 of 2000 was filed against the order of the Collector dismissing the appeals not maintainable was quashed and the case was remitted to the Collector for the re-decision vide order dated 15.5.2000. However, instead of allowing the Collector to proceed with the decision of the appeal on merits again the writ petition No. 8601 of 2001 was filed in this Court and in that writ petition was also again prayer was made for the stay of proceedings before the Collector and in that writ petition a prayer for the transfer of the case was also made. When the true facts were brought to the notice of the Hon’ble Division Bench and the matter was argued at length and the writ petition was going to be dismissed the counsel for the petitioners withdrew the writ petition and the Hon’ble Division Bench dismissed the writ petition as withdrawn. Thereafter, when the petitioner did not succeed in their motive, they moved the application for amendment of the plaint and also filed an application before the Commissioner for transfer of the case from the Collector knowing fully well that their claim for transfer had already been rejected by this Court and while dismissing the writ petition as withdrawn no permission was granted to approach any authority. Petitioner No. l is in possession of more than 5 acres of Gram Panchayat Land, petitioner No. 2 is in possession of more than 10 acres of panchayat land, petitioner No. 3 is in possession of more than 35 acres of panchayat land, petitioner No. 4 is in possession of more than 5 acres of panchayat land, the petitioner No. 5 is in possession of 45 acres of land and the petitioner No. 6 is in possession of 40 acres and respondent No. 5 is in possession of more than 80 acres of gram panchayat land. It was submitted that the petitioners are clinging to the land belonging to the gram panchayat. Charands vest in the gram panchayat and gram panchayat is competent to lease it out for the purpose of cultivation etc. for the income of the gram panchayat. As the petitioners are not allowing to proceed with the proceedings under Section 13-B, the ejectment application filed against the unauthorised occupants are lying pending before Assistant Collector, First Grade, Panipat for the last about 19 years.
11. It was submitted by the learned counsel for the respondent that under Article 227 of the Constitution of India, High Court has limited jurisdiction. It cannot go into the
matter whether the Tribunal, whose order is impugned, decided the case rightly or wrongly. High Court can only interfere with the Tribunal’s order, if it exceeded its jurisdiction. Order of tribunal, which has jurisdiction to try the case but decided the matter incorrctly, High Court cannot interfere under Article 227 of the Constitution of India. In support of this submission, he drew my attention to Bhura Singh v. Labh Singh 1980 P.L.J. 99. In Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam, A.I.R. 1985 S.C. 398 the Hon’ble Supreme Court observed that the powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 226. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority.
12. In this case the Financial Commissioner does not seem to have acted beyond the limits of its jurisdiction. While declining the prayer for amendment of the plaint, he has observed that prayer for amendment of the plaint, after about 20 years is too belated to be considered genuine.
13. Petitioners are earning lacs of rupees by remaining in possession of the land belonging to the gram panchayat. In my opinion, the proposed amendment was rightly refused by the Financial Commissioner, Haryana as it is mala fide. Application under Section 13-B of the Act was instituted in the year 1980. It was decided by the Assistant Collector, First Grade, Panipat in the year 1999. If proposed amendment is allowed now, that would mean the setting aside of the order of Assistant Collector, First Grade, dated 16.3.99 and setting the clock back. It is as if that application was instituted not in the year 1980 but in the year 2001. It is a huge chunk of land which the gram, panchayat claims that it is “shamilat deh” which vests in it and of which the petitioners are in unlawful possession reaping income running into lacs of rupees.
For the reasons given above, this revision fails and is dismissed.