CR No. 5448 of 2006 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CR No. 5448 of 2006
Date of decision March 24, 2009
Sham Lal Nirwani and others
....... Petitioners
Versus
Shri Dile Singh and others
........Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. C.B. Goel, Advocate
for the petitioners.
Mr. Rakesh Gupta, Advocate.
None for respondent No.39.
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1. Whether reporters of local papers may be allowed
to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the
digest?
K. Kannan, J (oral)
1. The plaintiff who sought for amendment of his
plaint seeking for inclusion of a reference to an item of property in Khasra
No. 197/26(1- 6 ) that fell to be divided earlier in a partition deed was
rejected by the Appellate Court on ground that it would require a de novo
trial and that the plaintiff was not entitled to bring about an amendment of
the Appellate Court.
2. Learned counsel for the respondent supports the
order passed by the Appellate Court on the ground that it was not as if the
plaintiff did not know about the existence of the partition deed or that there
was any particular circumstance which was responsible for his omission to
make a reference to the property in suit No. 179/76. The counsel further
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contends that the trial Court had adverted to the defence made by him that
the suit was bad for partial partition and that the plaintiff had deliberately
concealed the existence of some other items which according to the
plaintiff had already been partitioned.
3. A particular matter stands out that the amendment
to the pleadings which is now sought for does not seek for inclusion of any
item for property for partition but merely explains the effect of a partition
that had already taken place in the year 1986 and that the present suit for
partition was with reference to the remaining properties that stood
undivided. The learned counsel for the respondent is in some way justified
in saying that even this document cannot be received by the Appellate
Court without subjecting the appellant-plaintiff to cross examine. It would
be always possible for the defendant to establish that the partition effected
in the year 1986 was complete in all respects and there was no other
property to be divided. The document may not be received by the Appellate
Court without any further proof and for rendering a complete adjudication, I
direct that the amendment is ordered as prayed for, with liberty given to the
contesting respondent before this Court to file an additional written
statement and the Appellate Court shall also consider if the plaintiff
states that the document of partition is already exhibited before the trial
Court and he does not seek to lead any evidence, then, by virtue of the
amended pleadings if the defendant seeks to elicit some facts from out of
the documents by subjecting the plaintiff to cross examine, such
permission shall be granted. It shall be open to the defendant to move an
appropriate application for cross examination of the plaintiff with reference
to the additional facts which are sought to be introduced in the plaint.
4. The Civil revision petition is accordingly allowed.
The orders of the Court below are set aside on condition that the revision
petitioner pays the contesting respondent costs of Rs. 5,000/- on or before
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15.4.2009. The party shall appear before the Additional District Judge,
Kaithal on 15.4.2009.
(K. KANNAN)
JUDGE
March 24, 2009
archana