IN THE HIGH COURT OF JUDICTURE AT PUNJAB & HARYANA

ORDINARY APPELLATE JURISDICTION

CIVIL REVISION PETITION NO. OF 2014

IN THE MATTER OF:

Sanjeev Yadav & Ors. ...PETITIONERS
VERSUS

Arvind Yadav & Ors. …RESPONDENTS

CIVIL REVISION PETITION UNDER SECTION 115 (1) OF THE CIVIL

PROCEDURE CODE, 1908 AGAINST THE ORDER DATED 30.01.2014
PASSED BY MRS. MANVIKA BANSWAL, LD. CIVIL JUDGE (JUNIOR
DIVISION), GURGAON IN CIVIL SUIT BEARING NO. 134/2007 TITLED
“SANJEEV YADAV & ORS. V. ARVIND YADAV & ORS.”

MOST RESPECTFULLY SHOWETH:

1. That the revision petition has been filed by the petitioners/plaintiffs against the
order dated 30.01.2014 passed by Mrs. Manvika Banswal, Ld. Civil Judge (Junior
Division), Gurgaon in Civil Suit bearing No. 134/2007 titled “Sajeev Yadav &
Ors. V. Arvind Yadav & Ors.” wherein the suit for partition, permanent
injunction and recovery of Rs. 4,32,000/- (Rupees Four Lakhs and Thirty Two
Thousand Only) and rendition of accounts and mesne profits for unauthorized use
and occupation of the suit property was filed by the petitioners. The Court has
dismissed the application filed by the petitioners under Order VI Rule 17 read
with Section 151 of the Civil Procedure Code, 1908 and has passed an order
against the petitioners herein without appreciating the documents and evidence
placed on record by the petitioners and settled legal proposition on the same. The
certified copy of the impugned order dated 30.01.2014 is annexed herewith and
marked as Annexure A-1.
2. That the brief facts which have led theplaintiffs/petitioners to file the present
revision petition are as follows.

3. That the petitioners have filed a plaint along with the site plan of the suit property
and other documents, which was devolved to the parties from their common
ancestorssituated within the abadi of Village Mohalera, Tehsil and District
Gurgaon in the Court of Civil Judge (Junior Division), Gurgaon for the partition
and permanent injunction. The petitioners and respondents are co-owners of
theproperty which is marked as ABCDEFGH and has shown in red colour in the
site plan attached therewith and bounded as under:

North – Property of others

South – Rasta
East – House of Sh. Desh Raj
West – House of Sh. Mahipal

4. That initially the property in question was single storeyed building but
subsequently the petitioner No. 1 who is serving in the Indian Air Force got a
portion of ground floor and entire first floor in various stages from 1987 to as late
as 2006 by virtue of the oral family partition between the parties. The funds for
the same were mustered from General Provident Fund (GPF) loan from the
petitioner No. 1 department at various stages and other source of income. The
record of the same exists. Therefore, thepetitioner No. 1 has been using the
property openly and peacefully.

5. That there remains always a dispute between the parties to the suit in using the
property in question as the property is still joint between the parties to the suit.

6. That the respondents started interfering into the peaceful possession of the
petitioners and the respondents were started threatening the appellants that very
soon they will disposes the said property. The petitioners requested the
respondents many a times not to interfere in their peaceful possession of their
respective shares and not to dispossess them from the property and get the said
property partitioned by metes and bounds. But the respondents were adamant and
 finally refused to accede to the request of the respondents on 15.04.2007.
Therefore, hereinstated circumstances and facts led the petitioners to file the
plaint before the Ld. Civil Judge (Junior Division), Gurgaon and which is
annexed herewith and marked as Annexure A-2.

7. That the said plaint filed by the appellants was replied by the respondents vide
their Written Statement which was based on frivolous facts and clearly depicts
the malafide intentions of the respondents. The copy of the written statementis
annexed herewith and marked as Annexure A-3.

8. That the petitioners further filed an application for amendment under Order VI
Rule 17 of the Civil Procedure Code, 1908 to explain the related facts more
precisely and clearly for the just and final adjudication. The petitioners seek for
an amendment in the application on the fact that the suit property is an ancestral
property and was distributed between Sh. Harcharan (father of the petitioners and
grandfather of the respondent No. 1), Sh. Mahipal and Sh. Siyanand (son of Late
Sh. Ram Charan) by virtue of the family partition which was took place about 30
years ago in the year 1982. After the family partition, each of the parties came
into the possession of their respective share in the property as owner and a site
plan was also prepared accepting and acknowledging the family partition.
Thereafter, Sh. Siyanand (son of Late Sh. Ram Charan), Late Sh. Harcharan and
Sh. Mahipal became the absolute and exclusive owners of the properties as
shown in the red and yellow colour in the site plan enclosed herewith.

9. That after the demise of Late Sh. Harcharan, the property falling in the share of
Late Sh. Harcharan devolved upon his legal heirs namely Sh. Jagdish Chand and
the petitioners. Since, Sh. Jagdish Chand also died, his 1/5th share in the property
has also devolved upon the respondents herein i.e. the property shown in red
colour in the site plan attached herewith. Therefore, the petitioners and
respondents became the joint co-owners of the property left behind by Late Sh.
Harcharan and the same is marked as ABCIJ in the site plan filed by the
petitioners attached herewith.
10. That petitioner No. 1 is serving in Indian Air Force and was also posted out of the
State of Haryana from time to time and has lived in the suit property during
vacations while the petitioner Nos. 2 to 4 are married daughters of Late Sh.
Harcharan, who often visited and stayed with the petitioner No. 1 in the suit
property.

11. That during the lifetime of Late Sh. Jagdish Chand, it was agreed between the
petitioners and Late Sh. Jagdish Chand that the suit property shall be partitioned
between the petitioners and Late Sh. Jagdish Chand. However, before partitioning
the suit property by meets and bounds, Sh. Jagdish Chand died and his 1/5th share
in the suit property has devolved upon the respondents on many occasions to
partition the suit property but they did not partition the suit property and
subsequently categorically refused to partition the same.

12. That in the month of August 2013, the petitioners came to know that the
respondents had induced the tenancy in the suit property. The respondent Nos. 1
and 2 are illegally and unlawfully collecting the rent from the tenants from the
undivided and un-partitioned suit property belonging jointly to the petitioners and
respondents.

13. That the petitioners have come to know that the suit property is fetching a
monthly rent of about Rs. 15,000/- (Rupees Fifteen Thousand Only), which is
being retained by the respondents. However, the petitioners’ share in the rents
illegally misappropriated by the respondents comes to 4/5th of the total rent
collected by the respondents, which comes to Rs. 12,000/- (Rupees Twelve
Thousand Only) per month from the respondents since October, 2010 till the
filling of the application under Order VI Rule 17 read with Section 151 of the
Civil Procedure Code, 1908. The petitioners are thus entitled to seek recovery of
Rs. 4,32,000/- (Rupees Four Lakhs and Thirty Two Thousand Only) from the
respondents.

14. That the value of the suit property for the purposes of the Court Fees and the
jurisdiction is assessed at Rs. 200/- (Rupees Two Hundred Only) on which the
 appropriate Court Fees of Rs. 25/- (Rupees Twenty Five Only) had already been
affixed. The value of the suit for relief of the recovery is valued at Rs. 4,32,000/-
(Rupees Four Lakhs and Thirty Two Thousand Only) on which the Court Fees of
Rs. 26,900/- (Rupees Twenty Six Thousand and Nine Hundred Only) had already
been affixed. The petitioners are also seeking Rendition of Accounts from the
respondents for appropriating the rent realized by the respondents for
unauthorized use and occupation in the petitioners share in the suit property. The
value of the suit for the purposes of Rendition of Accounts and mesne profits is
presently assessed at Rs. 200/- (Rupees Two Hundred Only) and an appropriate
Court Fees of Rs. 20/- (Rupees Twenty Only) has already been affixed. The
petitioners further undertake to pay all such additional Court Fees as may be
directed by the Hon’ble Court when the exact amount towards mesne profits is
calculated by the Hon’ble Court.

15. That the petitioner has prayed in the amended application for the decree of
partition by mete and bounds of the suit property in favour of the petitioners
declaring that the petitioners are entitled to 1/5th share each of the suit property
situated within the abadi of Village Mohalera, Tehsil and District Gurgaon and
after the partition of the suit property, handover the possession of their respective
shares to each of the parties.

16. That the petitioner has prayed for the decree of recovery of sum of Rs. 4,32,000/-
(Rupees Four Lakhs and Thirty Two Thousand Only) in favour of the petitioners
and against the respondents.

17. That the petitioner has further prayed for the decree of Rendition of Accounts to
be passed in favour of the petitioners and against the respondents for the
rent/proceeds collected by the respondents from the tenants of the suit property
w.e.f. September, 2010 to till the date of filling of the amended plaint and award
the same to the petitioners along with the interest @ 24% per annum. The
certified copy of the application for amendment filed by the petitioners is
annexed herewith and marked as Annexure A-4.
18. That both the site plans filed by the petitioners are the same and exact. In order to
show the particular dimensions of the suit property more clearly, the petitioners
has filed another site plan with the better particulars of the same property with an
application for amendment. The copy of both the site plans are annexed herewith
and marked as Annexure A-5 and Annexure A-6 respectively.

19. That the respondents have filed their reply to the amended application filed by the
petitioners with incorrect facts and frivolous allegations against the petitioners
with malafide intentions to delay the justice. The certified copy of the reply filed
by the respondents to the application for seeking amendment of the petitioners is
annexed herewith and marked as Annexure A-7.

20. That the petitioners crave leave of this Hon’ble Court to refer to and rely upon the
pleadings, documents and proceedings before the Ld. Trial Court, which have
been filed along with the present petition.

21. That aggrieved by the impugned order, the petitioners have preferred the present
petition on the following amongst other grounds:

GROUNDS OF REVISION

A. Because the impugned order dated 30.01.2014 is ex-facie illegal, arbitrary

and is an outcome of gross non-application of judicious mind and is liable
to be set aside.

B. Because the Ld. Civil Judge has misconstrued the facts and the pleadings
and has thus passed an erroneous order.

C. Because the Ld. Civil Judge has failed to appreciate that the amended
application have been held to be valid as it is required for the proper and
effective adjudication of controversy between the parties and the prayer
seeking the decree of partition, permanent injunction recovery of Rs.
4,32,000/- (Rupees Four Lakhs and Thirty Two Thousand Only) and
Rendition of Accounts and mesne profits for an unauthorized use and
 occupation of the suit property because no new defence has sought to be
introduced and no prejudice has been caused to the respondents.

D. Because the Ld. Civil Judge had drawn an incorrect inference while
deciding the suit instituted by the petitioners. It is an already established
law that all amendments are to be allowed which do not purport to set up a
new case and which will be necessary to mention for the purpose of
determining the real question in controversy between the parties.

E. Because it is a laid fact that all amendments are permissible when they are
not changing the nature of the suit and in any event would be in interest of
justice. Since, the amendments filed by the petitioners have been sought for
the just and proper adjudication and are not affecting the nature of the suit.
Therefore,the aforesaid order interalia shows that the Ld. Civil Judge had
biased and arbitrary approach and had passed the impugned order with this
approach.

F. Because under Order VI Rule 17 of CPC, 1908; all amendments ought to be

allowed if it satisfy the following two conditions:-
(a) of not working injustice to the other side; and
(b) of being necessary for the purpose of determining the real question in
controversy between the parties.
Therefore, all the amendments seek by the petitioners are not harming the
interest of the respondents and are necessary for the purpose of
determining the real question in controversy between the parties.

G. Because the Ld. Civil Judge has erroneously quoted the judgment titled
“Pankaja & Anr. V. Yellapa (Dead) By LRs. & Ors. 2004 (3)
R.C.R.(Civil) 723: AIR 2004 SC 4102: (2004) 6 SCC 415” on the basis
that the granting of an amendment sub-serves the ultimate cause of justice.
The above stated judgment is not relevant to the present suit as the
application for amendment filed by the petitioners does not affectthe cause
 of justice as it has been filed in a most bonafide and proper manner for the
proper and final adjudication of this Court.

H. Because the Ld. Civil Judge has also relied upon the judgment titled
“Bhushan Banerjee V. Tulsi Charan Basu & Ors. AIR (37) 1950
Calcutta 107”on the ground of that no amendment can be allowed, if the
amendment would introduce an entirely new cause of action. The herein
stated judgment has been delivered on the basis of absolutely different facts
and grounds. The petitioners have not arose any new cause of action in the
present suit and haveonly sought for the amendment to explain the better
particulars and facts of the suit property which have already been
mentioned by the petitioners in the suit.

I. Because the Ld. Civil Judge has further cited a judgment titled “Gorantla
Kondalarayudu V. M/s Marvel Organics, 1998 (2) Civil Court Cases,
465”on the ground of introducing the entirely new and inconsistent facts.
The herein stated judgment has been delivered on the basis of different
grounds to the present suit. As the petitioners have not introduced any new
and inconsistent facts to the present suit and haveonly sought for the
amendment of the new updated comprehensive site plan with dimensions of
the same property and Rendition of Accounts and mesne profits arising out
from the same suit property.

J. Because the Ld. Civil Judge has erroneously cited anotherjudgment titled
“Smt. Harbhajan Kaur V. Jaswant Singh, 2001 (3) RCR (Civil), 723”on
the ground that at this stage of the suit, the amendment has only been made
to delay the proceedings of the suit. This quoted judgment is very
distinguishable on the basis of circumstances and proposition of law as
compared in the present suit. As the petitioners have sought for an
amendment in order to demark the actual and same facts but with more
clarity before the Hon’ble Court for the just, final and proper adjudication
of the present suit instead to delay the appropriate proceedings of the Court.
 K. Because the Ld. Civil Judge has cited the another judgment titled “Union
of India V. Pramod Gupta(Dead) by LRs and Ors., 2005 (12) SCC 1”on
the ground that delay and laches on the part of the parties to the
proceedings would be a relevant factor for allowing and disallowing the
application for amendment of the pleadings. This quoted judgment also
differs with the present suit. As all the amendments which have been sought
by the petitioners in the present suit were to justify the interest and right of
the appellants without any kind of delay on the part of the petitioners in the
present suit.

L. Because what is amended is the amendment of the better particulars of the

same suit property vide a new comprehensive site plan and other documents
with the Rendition of Accounts and mesne profits for an unauthorized use
and occupation of the suit property and that would not change the nature of
the suit. Thus, the Trial Court has committed an error in rejecting the
application.

M. Because the Ld. Civil Judge has grossly erred in misconstruing the
pleadings and the evidence of the petitioners and has thus passed the
impugned order contrary to the facts on record.

22. That it has been held in the following mentioned cases that the pleadings can be
amended under Order VI Rule 17 of the CPC at any time during the pendency of
the suit unless the claim is barred by time. Therefore, no limitation has been
provided for the amendment of the plaint.Moreover, the application for
amendment can be allowed if it is not changing the nature of suit and is not
affecting the interest of the other side.

i. “Munish Jain V.Shimpy Jain, Civil Revision No. 3239/2013”

ii. “Kanta Mehta V. Parminder Kumar Mehta, Civil Revision No.
7062/2013”
 iii. “Bhawani Singh V. Krishna Nand, Civil Revision No. 7330/2013
(O&M)”
iv. “Zora Singh V. Nasib Singh, Civil Revision No. 106/2012 (O&M)”
v. “Gurnam Singh V. Narinder Singh Saini, Civil Revision No. 3453/2013”

23. That the impugned order was passed by the Ld. Civil Judge on 30.01.2014. The
certified copy of the order was applied by the petitioners on 13.02.2014 and the
same was received on 17.02.2014. The present petition is thus within limitation.

24. That the petitioners have not preferred any other petition against the impugned
order either before this Hon’ble Court or any other Court.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
(a) allow the petition and set aside the order dated 30.01.2014passed by Mrs.
Manvika Banswal, Ld. Civil Judge (Junior Division), Gurgaon in Civil Suit
bearing No. 134/2007 titled “Sajeev Yadav & Ors. V. Arvind Yadav &
Ors.”

(b) award cost in favour of the petitioners and against the respondents.

(c) any other or further order, direction or relief, which this Hon’ble Court may
deem fit and proper in the facts and circumstances of the case.

DATE PETITIONER
PLACE Through
 IN THE HIGH COURT OF JUDICTURE AT PUNJAB & HARYANA
ORDINARY APPELLATE JURISDICTION
CIVIL REVISION PETITION NO. OF 2014

IN THE MATTER OF:

Sanjeev Yadav & Ors. ...PETITIONERS
VERSUS

Arvind Yadav & Ors. …RESPONDENTS

AFFIDAVIT

I, Sanjeev Yadav, S/o Late Sh. Harcharan, aged about 54 years, R/o V.P.O. Moulahera,
Tehsil and District Gurgaon, Haryana, do hereby solemnly affirm and declare as
under:-

1. That I am the petitioner No. 1 in the aforesaid petition and am well versed with
the facts of the case and as such am competent to swear this affidavit.

2. That the contents of the accompanying Petition under Section 115 (1) of the
CPC, 1908 are true and correct to my knowledge and same has been drafted by
my counsel under my instructions and no part of it is false and nothing has been
concealed therefrom.

DEPONENT

VERIFICATION:
Verified at Gurgaon on this day of 2014 that the contents of the above affidavit are
true and correct to the best of my knowledge and no part of it is false and nothing
material has been suppressed therefrom.

DEPONENT
 IN THE HIGH COURT OF JUDICTURE AT PUNJAB & HARYANA
ORDINARY APPELLATE JURISDICTION
CIVIL REVISION PETITION NO. OF 2014

IN THE MATTER OF:

Sanjeev Yadav & Ors. ...PETITIONERS
VERSUS

Arvind Yadav & Ors. …RESPONDENTS

APPLICATION UNDER SECTION 151 OF THE CPC, 1908 FOR STAY OF

THE FURTHER PROCEEDINGS OF THE TRIAL COURT

MOST RESPECTFULLY SHOWETH:

1. That the petitioners have filed the accompanying petition against the order
passed by Mrs. Manvika Banswal, Ld. Civil Judge (Junior Division), Gurgaon
in Civil Suit bearing No. 134/2007 titled “Sajeev Yadav & Ors. V. Arvind
Yadav & Ors.” dated 30.01.2014, whereby the Ld. Civil Judge was pleased to
dismiss the application under Order VI Rule 17 of the CPC, 1908 file by the
petitioners. The petitioners crave leave of this Hon’ble Court to refer to and rely
upon the submissions made in the accompanying petition at the time of disposal
of the present application as the same are not being repeated here for the sake of
brevity.

2. That the balance of convenience lies in the favour of the petitionerts and against
the respondents.

3. That the petitioners shall suffer irreparable loss and injuries which cannot be
compensated in case the execution are not stayed by this Hon’ble Court pending
the present petition.

4. That the petitioners have a prima facie good case on merit and is likely to
succeed.
5. That the present application has been filed bonafidely and in the interest of
justice.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to stay
the further proceedings of the suit before the Court of Mrs. Manvika Banswal, Ld. Civil
Judge (Junior Division), Gurgaon in Civil Suit bearing No. 134/2007 titled “Sajeev
Yadav & Ors. V. Arvind Yadav & Ors.”

DATE PETITIONER
PLACE Through
 IN THE HIGH COURT OF JUDICTURE AT PUNJAB & HARYANA
ORDINARY APPELLATE JURISDICTION
CIVIL REVISION PETITION NO. OF 2014

IN THE MATTER OF:

Sanjeev Yadav & Ors. ...PETITIONERS
VERSUS

Arvind Yadav & Ors. …RESPONDENTS

AFFIDAVIT

I, Sanjeev Yadav, S/o Late Sh. Harcharan, aged about 54 years, R/o V.P.O. Moulahera,
Tehsil and District Gurgaon, Haryana, do hereby solemnly affirm and declare as
under:-

1. That I am the petitioner in the above noted case and am well versed with the facts of the
case and as such am competent to swear this affidavit.

2. That the contents of the accompanying application under Section 151 of the CPC, 1908
for stay are true and correct to my knowledge and same has been drafted by my counsel
under my instructions and no part of it is false and nothing has been concealed
therefrom.
DEPONENT

VERIFICATION:
Verified at Gurgaon on this day of 2014 that the contents of the above affidavit are
true and correct to the best of my knowledge and no part of it is false and nothing
material has been suppressed therefrom.

DEPONENT