Ram Niwas Vs. Bramchari and ors. - Court Judgment |
| Civil |
| Punjab and Haryana High Court |
| Apr-29-2009 |
| K. Kannan, J. |
| (2009)155PLR716 |
| Ram Niwas |
| Bramchari and ors. |
| Revision dismissed |
.....of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case......in appeal for including the prayer for recovery of possession of property in a suit for specific performance. the amendment is in terms of section 22 of the specific relief act, to include the relief of recovery of possession in the suit for specific performance. this provision has been considered by hon'ble the supreme court in several decisions and various courts that this power shall be construed liberally and amendment could be ordered 'at any stage of the proceeding' till the stage when the matter is before hon'ble supreme court. proviso to section 22 itself contemplates the right of a party to claim any relief which had been omitted at any stage of the proceedings (emphasis supplied) and allow him to amend the plaint on such terms as may be just for including a claim for such relief. the order passed by the appellate court is perfectly justified and the appellant revision petitioner cannot be said to be in any way prejudiced by such a prayer. if the prayer for recovery of possession of property is always considered as an ancillary relief, the only objection that is possible could be in relation to the territorial jurisdiction and even that plea may not be possible.....
K. Kannan, J.
1. The revision is against the order permitting at the appellate stage, a petition for amendment filed at the instance of the plaintiff/respondent in appeal for including the prayer for recovery of possession of property in a suit for specific performance. The amendment is in terms of Section 22 of the Specific Relief Act, to include the relief of recovery of possession in the suit for specific performance. This provision has been considered by Hon'ble the Supreme Court in several decisions and various courts that this power shall be construed liberally and amendment could be ordered 'at any stage of the proceeding' till the stage when the matter is before Hon'ble Supreme Court. Proviso to Section 22 itself contemplates the right of a party to claim any relief which had been omitted at any stage of the proceedings (emphasis supplied) and allow him to amend the plaint on such terms as may be just for including a claim for such relief. The order passed by the appellate court is perfectly justified and the appellant revision petitioner cannot be said to be in any way prejudiced by such a prayer. If the prayer for recovery of possession of property is always considered as an ancillary relief, the only objection that is possible could be in relation to the territorial jurisdiction and even that plea may not be possible in a case where the suit itself has been disposed of after evidence of parties on merits.
2. Needless to state that the appellant shall have a right to make an additional pleading consequent on the amendment as permitted to be made in the pleadings of the plaintiff. Subject to this liberty, the Civil Revision is dismissed.