Kamlesh Gupta vs Mangat Rai

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7556 OF 2019 (@ S.L.P. (C) NO. 13980 OF 2018)

Kamlesh Gupta …..Appellant

Versus

Mangat Rai & Anr. ..…Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The present appeal has been filed against the order dated

17.01.2018 passed by the High Court of Punjab and

Haryana dismissing Civil Revision No. 6019/2016 (O&M)

filed by the appellant herein. The aforesaid revision petition

was filed against an order passed by the Civil Judge (Junior

Signature Not Verified Division) on 20.08.2016, vide which the appellant’s Digitally signed by GULSHAN KUMAR ARORA Date: 2019.10.21 16:43:02 IST Reason: application for amendment of the plaint and for impleading

another party to C.S. No. 950/2013 had been dismissed.

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3. The brief facts leading to the instant appeal are as follows:

Kamlesh Gupta, the plaintiff in the abovementioned suit

(the appellant herein), had mortgaged shop bearing MC No.

B-22/56 (15‘X60’) with Mangat Rai, the first defendant in

the suit (the first respondent herein), for a sum of Rs. 7

lakhs vide a mortgage deed dated 22.09.2009. The plaintiff

later filed C.S. No. 950/2013 for possession of the suit shop

by way of redemption on the payment of the aforesaid

mortgage amount. The first defendant in the said suit

admitted the claim of the plaintiff, but averred that he had

permitted Rakesh Kumar, the second defendant (the

second respondent herein), to use the suit shop to run a

business. As per the first defendant, the second defendant

had agreed to vacate the suit shop when the mortgage was

redeemed, but had failed to vacate it at the time of

redemption, which gave rise to the suit.

4. On the other hand, the second defendant denied the

validity and execution of the mortgage deed, and denied

being in possession of the suit shop. As per the second

defendant, the father of the plaintiff, who was the original

owner of the suit shop, had inducted one Pawan Kumar as a

tenant.

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5. After the issues had been framed and the affidavits in lieu

of examination-in-chief of four witnesses for the plaintiff

taken on record, but before the cross-examination of the

plaintiff herself was done, she filed an application on

25.01.2016 under Order I Rule 10 and Order VI Rule 17,

read with Section 151 of the Code of Civil Procedure, 1908

(in short “the CPC”) to implead the aforesaid Pawan Kumar

as the third defendant, as well as to add a paragraph in the

plaint to the effect that the said Pawan Kumar, who was

was the father of the second defendant, had colluded with

the defendants to obtain possession of the suit shop.

6. The Trial Court dismissed this application on the ground

that the facts stated in the application were already within

its knowledge.

7. The Single Judge of the High Court, while deciding the

revision petition arising from the dismissal of the

application, also came to the conclusion that since the facts

that were sought to be added by way of amending the

plaint were within the knowledge of the plaintiff, her

application was hit by the proviso to Order VI Rule 17 of the

CPC, which prevents a party from amending the plaint post

the commencement of the trial, unless the Court concludes

3 that in spite of due diligence, the party could not have

raised the matter before the commencement of trial.

Notably, the Single Judge did not provide any reason for

rejecting the prayer for impleadment, and proceeded to

dismiss the entire application only by referring to the

proviso to Order VI Rule 17 of the CPC.

8. It is evident that the High Court failed to examine the

application on merits as far as the question of the

impleadment of the aforesaid Pawan Kumar is concerned.

In this regard, it is relevant to note that even as per the

written statement filed by the second defendant, the said

Pawan Kumar is in possession of the suit shop, where he is

carrying on a business in the name and style of ‘Pawan

Cloth House’ as its sole proprietor. Additionally, though the

second defendant never mentioned in his written statement

that Pawan Kumar was his father, it has now come on

record that Pawan Kumar is none other than the father of

the second defendant. Furthermore, going by the written

statement of the first defendant, the second defendant is

his nephew, being his sister’s son. Prima facie, the two

defendants and Pawan Kumar appear to be close relatives.

4 Such fact is suppressed by the second defendant in his

written statement.

9. So far as the possession of the suit shop is concerned, as

per the first defendant’s own admission, possession was

handed over to the second defendant by the first

defendant. We fail to understand how the first defendant,

as the mortgagee of the suit shop, handed over its

possession to a third party without even informing the

mortgagor, i.e. the plaintiff. Furthermore, it is unclear in

what capacity the second defendant obtained possession of

the suit shop, as no lease deed or any such document has

been produced before us. In any case, the fact that Pawan

Kumar is now in possession, though unauthorised, has not

been disputed by any of the parties. In the present

scenario, therefore, even if a decree is granted in favour of

the plaintiff, Pawan Kumar may object to the execution of

the said decree on the ground that he was not made a

party to the suit despite being in possession of the suit

shop.

10. We are of the opinion that by virtue of actual possession

being enjoyed by Pawan Kumar, he is a necessary party to

5 the present suit. Even otherwise, he is a proper party for

the reasons elucidated above.

11. We are aware that, ordinarily, such an application needs to

be filed before the commencement of the trial.

Undoubtedly, in the present case, the trial has commenced,

and the affidavits in lieu of examination-in-chief of four

witnesses for the plaintiff have been filed. However, having

regard to the fact that the two defendants and Pawan

Kumar are close relatives, it seems possible that the

plaintiff may have been kept in the dark regarding the

possession of the suit shop. We do not wish to comment on

whether the defendants and Pawan Kumar colluded to

actively withhold this information from the plaintiff. But the

fact remains that the plaintiff did not know about the

internal arrangement between the defendants and Pawan

Kumar. Therefore, even though the application for

impleadment and amendment of the plaint was filed by the

plaintiff belatedly, the interest of justice demands that the

application be allowed, to ensure that in the eventuality of

the suit being decreed in his favour, the plaintiff does not

become vulnerable to another round of litigation at the

6 stage of execution. We deem it fit, however, to impose

costs of Rs.10,000 on the plaintiff.

12. For these reasons, we set aside the orders passed by the

Trial Court and the High Court rejecting the application for

impleadment and amendment of the plaint, and hereby

allow the aforesaid application. We direct the appellant to

deposit costs of Rs. 10,000 before the Trial Court within 8

weeks from today.

13. At the same time, we direct the Trial Court to decide the

case on merits, based on the evidence produced before it,

uninfluenced by the observations made by us.

14. The instant appeal is thus allowed as per the aforesaid

terms.

….…………………………………….J. (MOHAN M. SHANTANAGOUDAR)

……….……………………………….J. (INDIRA BANERJEE) NEW DELHI;

SEPTEMBER 23, 2019

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