whether a valid registration of Ex.A-2 has taken place at all. The reason is that the document was presented for registration by a power of attorney. Detailed procedure in prescribed under the Registration Act and the Rules made thereunder, in this regard. It is not clear that the procedure was followed. Another aspect of the matter is about delivery of possession. 35. Though it is in respect of a gift made by a Muslim, that delivery of possession is treated as an independent requirement, the same becomes relevant as regards gifts governed by Section 123 of the TP Act also in the context of ascertaining the consent of the party to the transaction. A transfer through gift becomes complete, only when it is made by the donar and accepted by the donee. If what is gifted is an item of immovable property, acceptance can be discerned from the act of delivery of possession. In case, the property is in possession of a tenant, the delivery can be affected through attornment of tenancy. If the donar and donee reside in the gifted premises, no independent act of delivery possession becomes necessary. Where, however, the property is in possession of a different individual and no specific acts of bringing the possession under the control of donee are taken, the effectiveness of acceptance of the gift suffers a dent. 36. The suit schedule property, in the instant case, was in the possession of the defendant even before the gift was made. That was accepted by PW-1 and nothing contrary was indicated. After Ex.A-1 also, the defendant continued to be in possession. Though it was stated in the plaint that the defendant remained in possession of the property with the consent of the 1st plaintiff, who deposed as PW-2, he did not state the manner in which such consent was given. For all practical purposes, Ex.A-2 did not bring about any qualitative change of the possession of the defendant over the suit schedule property. Therefore, from this point of view also, there was no valid gift in favour of the 1st plaintiff.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1238 of 2010    

05-01-2012.

Between:

Duddumpudi Venkatarayudu  

Duddumpudi Rajagopal alias Tatabbai and another

Counsel for the Appellant: Mr. T.S. Venkata Ramana

Counsel for the Respondents:Mr. M.V.S. Suresh Kumar  


?Cases referred                 :       AIR (15) 1928 P.C. 38      
                                                AIR (37) 1950 MADRAS 239  
                                                AIR (36) MADRAS 775  
                                                AIR (11) 1924 MADRAS 810  
FB
                                                AIR 1954 PATNA 556  

ORDER:
       
         The sole defendant in O.S.No.108 of 2002 is the appellant in this
second appeal.  For the sake of convenience, the parties are referred to, as
arrayed in the suit.

        2.  The 2nd plaintiff is the mother of the 1st plaintiff and the
defendant.  The suit was filed for the relief of declaration of title in respect
of the suit schedule property and for recovery of possession by evicting the
defendant therefrom.  Alternatively, it was pleaded that if any construction in
the schedule property is found to have been removed, then, a sum of Rs.50,000/-
be awarded towards value of the removed construction in addition to the recovery
of possession. Prohibitory injunction to restrain the defendant from making any
construction thereon or from interfering in any manner over the plaint schedule
property after possession thereof is delivered to the 1st plaintiff and
mandatory injunction directing him to remove new constructions if any made; were
also claimed.

3.  It was pleaded that the suit schedule property was purchased by the 2nd
plaintiff through a sale deed, dated 16-11-1981 (marked as Ex.A1) and that with
her permission, her elder son, the defendant, was living therein.  The 2nd
plaintiff is stated to have executed through her GPA, a gift deed on 06-03-2000
(marked as Ex.A-2) in respect of the suit schedule property, in favour of the
1st plaintiff and that through another document, dated 18-03-1998, she gifted
the vacant site of 121 sq.yds., to the defendant.  During the lifetime of their
father, the 1st plaintiff and the defendants are said to have partitioned all
the joint family properties, except the family house and a site and that they
were said to have been partitioned under a partition deed.
       
4.  It was pleaded that the 2nd plaintiff, who was residing with the 1st
plaintiff, an employee of the Central Government, went to Samalkot in the recent
past, when the 1st plaintiff proceeded to Newzealand.  It was alleged that when
the defendant was proclaiming rights of ownership over the suit schedule
property, the wife of the 1st plaintiff found from the Registrar's office that a
deed of revocation was executed by the 2nd plaintiff on 21-08-2000 (marked as
Ex.A-3) cancelling the gift executed in favour of the
1st plaintiff on 06-03-2000, and that another gift deed, dated
13-10-2000 (marked as Ex.A-4) was executed in favour of the defendant in respect
of the same property.  Alleging that the defendant played fraud upon the 2nd
plaintiff in procuring the documents Exs.A-3 and A-4, the plaintiff filed the
suit for the reliefs mentioned above.

5.  The defendant filed a written statement denying the allegations.  He stated
that the 2nd plaintiff never executed any gift deed in favour of the 1st
plaintiff.  He alleged that the 1st plaintiff got the GPA in favour of one of
his employees from the 2nd plaintiff and Ex.A-2 was brought into existence
through the said G.P.A.  He pleaded that the 2nd plaintiff realised the fraud
played upon her and on her own accord and free will executed a deed of
cancellation (Ex.A-3) and a gift deed (Ex.A-4), in his favour.  He further
stated that the 1st plaintiff was never in possession of the property.  He
further pleaded that the 2nd plaintiff did not instruct any one to file a suit
on her behalf and her signatures were forged at various documents, including the
plaint.  He raised an objection as to the maintainability of the suit.

6.  The plaintiff filed a rejoinder, explaining certain facts stated in the
written statement.

7.  The trial Court decreed the suit through judgment, dated 07-02-1956.  The
defendant filed A.S.No.1 of 2006 in the court of the VII Additional District
Munsif, Kakinada.  The appeal was dismissed on 26-07-2000.  Hence, this second
appeal.

8.  Sri T.S.Venkata Ramana, learned counsel for the defendant submits that
alleged gift deed (Ex.A-2) in favour of the 1st plaintiff was not proved as
required under law, particularly when the 2nd plaintiff (PW-1) the executant
thereof, stated that she did not sign upon it.  He contends that the very
registration of Ex.A-2 is shrouded in mystery since PW-1 disputed her signatures
thereon and the document has said to be presented for registration by a power of
attorney.  He further submits that Ex.A-3 the revocation deed and Ex.A-4 gift
deed in favour of the defendant were not challenged in the suit and in that view
of the matter, there was no basis for granting relief to the plaintiffs.  It is
urged that at no point of time, the 1st plaintiff was in possession of the
property and assuming that Ex.A-2 was proved, there was no delivery of the
possession of the property.  Learned counsel submits that the judgment rendered
by the trial Court and the lower appellate Court are contrary to the settled
principles of law.

9.  Sri M.V.S. Suresh Kumar, learned counsel for the
plaintiffs submits that the very fact that the 2nd plaintiff is said to have
executed Exs.A-3 and A-4 are sufficient to hold that Ex.A2 is proved.  He
submits that the possession of the defendant over the schedule property was
permissive and that he does not derive any right in respect thereof.  Learned
counsel submits that the minor discrepancies in the deposition of PW-1 are
referable to her old age and ill health and that the lower appellate Court has
taken the correct view of the matter and, granted appropriate relief.
       
10.  The pleadings before the trial Court comprised of plaint, written statement
and rejoinder.

11.  The following issues were framed by the trial Court:
1. Whether the 2nd plaintiff executed gift deed in favour of the 1st plaintiff?

2. Whether the 2nd plaintiff executed revocation deed, dated 21.08.2000?

3. Whether the plaintiffs are entitled to the declaration prayed for?

4. Whether the plaintiffs are entitled to possession?
5. Whether the plaintiffs are entitled to the alternative relief of recovery of
possession and recovery of Rs.50,000/-?
12.  On behalf of the plaintiff, PWs-1 to 7 were examined and Exs.A-1 to A-9
were filed.  On behalf of the defendant, DWs.1 to 4 were examined.  The trial
Court appointed a commissioner and the reports were taken on record as Exs.C-1
and C-2.  Exs.X-1 to X-4 were also taken on record and on the suit being
decreed, the defendant filed A.S.No.41 of 2006.

13.  The following points were framed for consideration by the lower appellate
Court:
1. Whether the 2nd plaintiff executed Ex.A-2 gift deed, dated 06-03-2000
bequeathing the suit schedule property to the 1st plaintiff, as such, it is
valid and binding on the defendant?

2. Whether the 2nd plaintiff cancelled the gift deed, Ex.A-2, dated 06-03-2000
by executing Ex.X-1 (Equivalent to Ex.A-3) and executed Ex.X-2 (Equivalent to
Ex.A-4) deed, dated 13-10-2000 in favour of defendant?

3. If the 2nd plaintiff cancelled Ex.A-2, dated
06-03-2000 by executing Exs.X-1 and X-2 whether the act of 2nd plaintiff is
valid under the eye of law?

4. Whether the 1st plaintiff is entitled for declaration of title over the suit
schedule property with consequential recovery of possession by ejecting the
defendant with damages of RS.50,000/-?

5. Whether the 1st plaintiff is entitled for permanent injunction, prohibitory
injunction and mandatory injunction as prayed for?

6. Whether the trial court erroneously appreciated the evidence on record and
decreed the suit of the plaintiff, as such the judgment and decree of the trial
court warranted any interference of this court or not?

The appeal was dismissed.

14.  The second appeal was admitted on finding that the following substantial
questions of law arise for consideration:
1) The lower court and appellate court failed to see that PW.1 admitted in her
evidence that she did not sign on the plaint and she denied signature on the
chief affidavit Ex.A-2 and the plaint?

2) The lower court and the appellate court failed to see that when PW.1 denied
her signature on Ex.a2 it cannot be said that Ex.A-2 gift deed was executed by
the 1st plaintiff with her free will and consent?

3) The lower court and appellate court failed to see that Ex.A-2 gift deed was
not registered by the 1st plaintiff and it was alleged to have been registered
by the power of attorney holder?

15.  Now it needs to be seen as to whether the defendants satisfied this Court
as to the existence of such questions and if so, how the said questions are to
be answered.

16.  The facts in brief, as reflected in the pleadings have already been
mentioned.  The dispute is, mostly between the two sons of the 2nd plaintiff
i.e., 1st plaintiff and defendant.  Both of them are laying claim to the
property held by their mother PW-1, and two separate deeds of gifts i.e. Ex.A-2
and Ex.A-4, respectively.

17.  The defendant raised a plea that PW-1, their mother, did not instruct any
one to file a suit, on her behalf.  If, in fact, she did not instruct anyone to
file the suit, a serious defect would creep into the proceedings.  It is only
the 2nd plaintiff that could have asserted that Exs.A-3 and A-4 were not
executed by her.  In case, she has executed the said documents and did not
disown them, the
1st plaintiff can claim against the relief against the defendant, if necessary,
by impleading their mother as one of the defendants.

18.  The 2nd plaintiff deposed as it PW-1.  In her cross-examination, it was
elicited through her that she did not sign the plaint or the affidavit filed in
lieu of chief-examination.  Her statement reads:
"the signature on plaint is not mine.  The signature on chief affidavit is not
mine. I have not filed any evidence with reference to the document executed in
the name of defendant."

19.  Once PW-1 stated that she did not sign the plaint or affidavit in lieu of
chief-examination, the very foundation for the suit becomes shaky.  It is true
that the evidence of PW-1 was not consistent and in several places, she made
contradictory statements.   However, that was also the case vis--vis Ex.A-2 a
gift deed in favour of the 1st plaintiff.  To be precise, she deposed:

"I do not know what is the document executed by me in favour of the 1st
plaintiff for the said land.  I do not know the contents of the documents.  I
signed the documents at the instance of the
1st plaintiff without knowing the contents. ...... .........
I executed that document when I was in hospital bed."

Similar statements were made as regards her terms with the defendant.

20.  When such is the condition or version of PW-1 i.e. the
2nd plaintiff, it is difficult to imagine that she gave specific instructions to
any counsel to file a suit on her behalf.  Further, it is not as if the parties
are helpless, if PW-1 was not in a position to take independent decisions.
Appointment of a next friend, as provided for under Order - XXXII CPC could have
been resorted to. Once, the 2nd plaintiff stated that she did not sign the
plaint and the affidavit in lieu of chief-examination, the trial Court ought not
to have treated the suit as properly instituted.  Even if a doubt in this regard
did not arise when the suit was numbered, at least when such facts came to light
at a later stage, there was no basis or justification for the Court to proceed
with the suit.  The plaint insofar as it related tEo the 2nd plaintiff ought to
have been returned, for presentation in accordance with law.  Therefore, the
first substantial question of law is found to be existing in this case, and it
is answered in favour of the defendant.

21.  Though Plaintiffs 1 and 2 sought the relief of declaration of title vis--
vis the suit schedule property, in fact the relief is claimed by the 1st
plaintiff alone.  The reason is that throughout the plaint, the emphasis is on
the validity and legality of Ex.A-2 the gift deed in favour of the 1st plaintiff
and invalidity of Exs.A-3 and A-4.  If Ex.A-2 is validly executed and if it is
continues to be valid, there is no question of the 2nd plaintiff holding any
right or title over the property.  In that view of the matter, the further
question as to whether there was a revocation thereof through Ex.A-3 and whether
the subsequent gift through Ex.A-4 in favour of the defendant is valid?, would
arise.  The defendant raised a specific plea that Ex.A-2 was not signed by PW-1
at all.  In the ordinary course of things, if a deed of cancellation is
executed, cancelling the deed of gift, the necessity to verify the proof of the
gift deed may not arise.  The reason is that an act of cancellation presupposed
the existence of what is sought to be cancelled.  Where, however, there is any
amount of uncertainty and a plea is raised to the effect that the gift deed was
not executed at all and cancellation was resorted to as a precautionary measure,
the necessity to prove the gift deed, independently, would subsist.

22.  Further, Section 68 of the Evidence Act mandates that if a document, which
is required by law, to be attested, cannot be used as evidence until one
attesting witness, at least, has been called, for the purpose of proving its
execution. Alternative methods are also indicated.  If the deed is registered,
the necessity to examine the attestors may not arise unless, the executant of
the document denies his signatures on it.  In the instant case, Ex.A-2 is a gift
deed and it is required to be attested under Section 123 of the Transfer of
Property Act (for short 'TP Act').  In the plaint, it was mentioned that though
the document was signed by PW-1, it was presented for registration by her GPA
(PW-6).

23.  The necessity for the plaintiff, to prove a document would arise when the
defendant denies the execution thereof.  An extraordinary situation is noticed
in this case.  PW-1 stated that she did not know the contents of Ex.A-2 and that
she was unwell when it was executed and that she did not sign that document at
all.  Though this was elicited in her cross-examination, no damage control was
done, either by making suggestions in any re-examination or by adducing any
other evidence.  Some of the statements made by her in the cross-examination
vis--vis Ex.A-2 have already been extracted in the previous paragraphs.  She
said that she does not know the contents of the document.  In addition to that,
she said:
"I cannot give particulars of the document.  By that time, I am unwell.  I was
in hospital by that time. I was on saline for three months and intake of food
was not good."

At another place, she stated:
"I do not know who drafted and typed Ex.A-2.  I was seriously ill by the date of
Ex.A-2 and it was being plan to take me to USA for treatment.  My condition was
not good by the date of Ex.A-2."

        24.  Proof of the execution of any document, which is relied upon by a
party to a suit, is one of the most important steps in the proceedings.    The
Evidence Act stipulated the method of proving a document either through primary
or secondary evidence.   What is required to be proved, is the execution of
document than its existence.   The word "execution" is not defined in any
enactment.  More often than not, the proof of signature on a document, is taken,
or treated, as proof of execution thereof.

        25.  A close scrutiny of the process, known as "execution of a document"
brings about several legal aspects or principles to light.  This area is mostly
covered by the Registration Act.  Sections 34 and 35 prescribe the manner in
which the Registrar is required to admit a document to registration.  Sections
77 thereof provides the remedy of filing of a suit, in the event of the
registration being refused.

        26.  There is a general perception that, once a document is presented
before a Registrar, and the executant thereof, admits his signature, or thumb
impression thereon, the Registrar has no option, but to register the document.
In other words, even if the executant pleads ignorance of the contents, or urges
that his signature was taken on a blank paper and that legal obligations, which
he did not subscribe to, were incorporated therein, the Registrar cannot refuse
registration.  The Privy Council and the High Courts of Madras and Patna made
valuable contribution in this area of law.

27.  In Puranchand Nahatta v. Monmothonath Mukherji1, Their Lordships of the
Privy Council held that the expression "person executing" is not identical with
the expression "person signing".  It was observed, that the words, 'person
executing',

"... mean something more, namely, the person, who by a valid execution enters
into obligation under the instrument."

28.  According to this, "execution" would mean the admission on the part of the
executant, that he subjected himself, to an obligation under the instrument.
This principle was followed by a Division Bench of the Madras High Court in
Sayyaparaju Surayya v. Koduri Kondamma2.  That case arose under Section 77 of
the Registration Act.  The Sub-Registrar refused to register a document, when
the signatory thereof denied the execution.  It was alleged that his signatures
were taken on  blank papers and that the document was brought into existence.
The Division Bench discussed the purport of Sections 35 and 77 of the Act with
reference to the decided cases and held :

        "The admission required, therefore, is admission of the execution of the
document. It may be a sale-deed, it may be a mortgage deed. It is not enough for
the person, who is the ostensible executant, to admit his signature on a paper
on which, may be, the document is ultimately engrossed. The identity of the
papers on which the signature occurs is not sufficient. If a man says that he
signed a blank paper on the representation that it was required for presenting a
petition, as in the present case, or if a man signs a completed document on the
representation that his signature or thumb impression is required as an
attesting witness, that admission of the signature or thumb impression in those
circumstances cannot be construed to be an admission of the execution of the
document."
29.  The judgment in Bapanayya v. Bangararaju3, rendered by a learned single
Judge, which held otherwise, was over-ruled.  Reliance was placed upon a
judgment rendered by a Full Bench of Madras High Court in Guruvayya v.
Venkataratnam4  The facts of the case before the Full Bench were: two documents,
have been procured from a person, in respect of two items of property, and later
on, the purchasers erased the contents of the documents, keeping the signature
in tact.  Documents, in respect of a larger extent of property were brought into
existence.  When the documents were presented for registration, the executant
admitted his signature, but denied the contents.  Manipulation of the contents,
was complained of.  It was urged on behalf of the purchaser that the Registrar
has no option, but to register the document, once the signature on the documents
was admitted by the executant.  On refusal of registration, suit was filed under
Section 77 of the Registration Act and the matter landed before the Full Bench.
The view taken by the Registrar, that the document cannot be registered if the
executant disputes the contents was upheld.  The gist of the judgment of the
Full Bench was summarized as under:

        "The mere fact that the signature on the document was admitted is not
treated as execution of the document so as to make it the imperative duty of the
Registrar to register the document. The admission of signature therein cannot be
taken to be conclusive and as constituting admission, of execution of the
document."

        30.  In Rajendra Singh v. Ramganit Singh5, the Patna High Court observed
that execution consists in signing a document written out, read over and
understood; and does not consist in merely signing a name upon a blank sheet of
paper.

        31.  It therefore emerges that the person can be said to have executed the
document, only when he knows the contents thereof and subscribes his signature,
or puts his thumb impression.  Once that is done, the question as to whether the
obligations created under the document are lawful or not would be outside the
scope of the power of a Registrar, or for that matter, of a Court.  That
exercise can be undertaken, if only the transaction covered by the document is
challenged.

        32.  In the instant case, PW.1 stated in unequivocal terms that she was
not aware of the contents of Ex.A.2.  Though her signature upon it was not
disputed, she cannot be said to have executed the document, once she was
ignorant about the contents.  Putting the signature on a document is not an
empty formality.  That act must connote the consent of the signatory, to abide
by the obligations, which arise under the document, or at least, the knowledge
thereof.

33.  Free will and being in a position to take an independent decision of sine
qua non for an individual to bring into existence a valid contract.  Since the
transaction of a gift is the one not suggested by any consideration, the
satisfaction of these two aspects is required to be much more.  When the party
was not in a position to take any decision, and was in a serious distress, any
commitment procured from such person is prone to be treated as tainted with
undue influence, or coercion.  If the witness, after recovering from the
distress, states that she did not know the contents of document when she signed
it, a valid gift cannot be said to have been made even if the other requirements
of law are satisfied.  Therefore, the second substantial question of law is
answered in favour of the defendant.

34.  A serious dispute arises as to whether a valid registration of Ex.A-2 has
taken place at all.  The reason is that the document was presented for
registration by a power of attorney.  Detailed procedure in prescribed under the
Registration Act and the Rules made thereunder, in this regard.  It is not clear
that the procedure was followed.  Another aspect of the matter is about delivery
of possession.

35.  Though it is in respect of a gift made by a Muslim, that delivery of
possession is treated as an independent requirement, the same becomes relevant 
as regards gifts governed by Section 123 of the TP Act also in the context of
ascertaining the consent of the party to the transaction.  A transfer through
gift becomes complete, only when it is made by the donar and accepted by the
donee.  If what is gifted is an item of immovable property, acceptance can be
discerned from the act of delivery of possession.  In case, the property is in
possession of a tenant, the delivery can be affected through attornment of
tenancy.  If the donar and donee reside in the gifted premises, no independent
act of delivery possession becomes necessary.  Where, however, the property is
in possession of a different individual and no specific acts of bringing the
possession under the control of donee are taken, the effectiveness of acceptance
of the gift suffers a dent.

36.  The suit schedule property, in the instant case, was in the possession of
the defendant even before the gift was made.  That was accepted by PW-1 and 
nothing contrary was indicated.  After Ex.A-1 also, the defendant continued to
be in possession. Though it was stated in the plaint that the defendant remained
in possession of the property with the consent of the 1st plaintiff, who deposed
as PW-2, he did not state the manner in which such consent was given.  For all
practical purposes, Ex.A-2 did not bring about any qualitative change of the
possession of the defendant over the suit schedule property.  Therefore, from
this point of view also, there was no valid gift in favour of the 1st plaintiff.

37.  For the foregoing reasons, the Second Appeal is allowed.  The judgments
rendered by both the Courts below are set aside.  There shall be no order as to
costs.

____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

the High Court had no jurisdiction to pass such an order, which was in the domain of the Speaker. The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under paragraph 6 of the Tenth Schedule to the Constitution. 49. The Speaker shall dispose of the pending applications for disqualification of the five MLAs in question within a period of three months from the date of communication of this order. 50. Having regard to the peculiar facts of the case, the parties shall bear their own costs.

|REPORTABLE              |


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7125 OF 2012
                    (Arising out of SLP(C)No.54 of 2012)



1 Speaker Haryana Vidhan Sabha                 … Appellant


           Vs.



           2 Kuldeep Bishnoi & Ors.                             …
Respondents




                                    WITH

                        CIVIL APPEAL NO.7126 OF 2012
                    (Arising out of SLP(C)No.55 of 2012)



1


2 Narendra Singh & Anr.                        … Appellants


           Vs.



           3 Kuldeep Bishnoi & Ors.                             …
Respondents



                                     AND

                        CIVIL APPEAL NO.7127 OF 2012
                    (Arising out of SLP(C)No.59 of 2012)



1 Dharam Singh & Anr.                   … Appellants


           Vs.



           4 Kuldeep Bishnoi & Ors.                    … Respondents



                                     AND

                        CIVIL APPEAL NO.7128 OF 2012
                    (Arising out of SLP(C)No.72 of 2012)



1 Zile Ram Sharma                                   … Appellant


           Vs.



           5 Kuldeep Bishnoi & Ors.                    … Respondents








                               J U D G M E N T



ALTAMAS KABIR, J.


1.       Leave granted.

2.       The subject matter of challenge  in  these  appeals  is  the  final
judgment and order dated  20th  December,  2011,  passed  by  the  Punjab  &
Haryana High Court in the different Letters  Patent  Appeals  filed  by  the
Appellants herein.

3.       The first Civil Appeal, arising out of  SLP(C)No.54  of  2012,  has
been filed by the Speaker of the Haryana Vidhan Sabha against  the  judgment
and order passed by the Punjab and Haryana High Court in his Letters  Patent
Appeal No.366 of 2011.  By the said judgment, the Division  Bench  not  only
dismissed the appeal and did not choose to  interfere  with  the  directions
given by the learned Single Judge to the Speaker  to  decide  the  petitions
for disqualification of five MLAs within a period of  four  months,  but  in
addition, directed that pending such decision, the  five  MLAs  in  question
would stand disqualified from effectively  functioning  as  members  of  the
Haryana Vidhan Sabha.   Aggrieved  by  the  interim  directions  purportedly
given under Order 41 Rule 33 of the Code of Civil  Procedure  (C.P.C.),  the
Speaker filed SLP(C)No.54 of 2012, challenging the same.

4.       The other three Special Leave Petitions (now  appeals)  were  filed
by the five MLAs, who were prevented  from  performing  their  functions  as
Members of  the  Assembly  by  the  directions  contained  in  the  impugned
judgment and order dated 20th December, 2011. While SLP(C)No.55 of 2012  was
filed by Narendra Singh and another, SLP(C)Nos.59 of 2012  and  72  of  2012
were filed by Dharam Singh and another and Zile Ram Sharma, being  aggrieved
by the impugned judgment and order for the same reasons as contained in  the
Special Leave Petition filed by Narendra Singh and another. The focal  point
of challenge in all these appeals, therefore, is the orders  passed  by  the
Division Bench of the Punjab and Haryana High Court on 20th December,  2011,
while disposing of the Letters Patent  Appeals  preventing  the  five  named
MLAs, who are also Appellants before us, from effectively discharging  their
functions as Members of the Vidhan Sabha.

5.       The facts narrated above give rise  to  the  following  substantial
questions of law of public importance, namely :-

(a)      Whether the High Court in exercise of  its  powers  under  Articles
      226 and 227  of  the  Constitution,  has  the  jurisdiction  to  issue
      directions of an interim nature to a  Member  of  the  House  while  a
      disqualification petition of such Member is pending before the Speaker
      of a State Legislative Assembly under Article 191 read with the  Tenth
      Schedule to the Constitution of India?

(b)      Whether even in exercise of its  powers  of  judicial  review,  the
      High  Court,  as  a  constitutional  authority,  can  issue  mandatory
      directions to the Speaker of  a  State  Assembly,  who  is  himself  a
      constitutional authority, to dispose of  a  disqualification  petition
      within a specified time?

(c)      Can the High Court, in its writ jurisdiction,  interfere  with  the
      disqualification proceedings pending before the Speaker  and  pass  an
      order  temporarily disqualifying a Member  of  the  State  Legislative
      Assembly, despite the law laid down by this Court in Raja Soap Factory
      vs. V. Shantharaj & Ors. [(1965(2) SCR 800] and in  L.  Chandra  Kumar
      vs. Union of India [(1997) 3 SCC 261], to the contrary?

(d)      When a disqualification petition filed under Article 191 read  with
      the  Tenth  Schedule  to  the  Constitution  of   India   is   pending
      consideration before  the  Speaker,  can  a  parallel  Writ  Petition,
      seeking the same relief, be proceeded with simultaneously? And

(e)      Did the High Court  have  jurisdiction  to  give  directions  under
      Order 41 Rule 33 of the Code of Civil Procedure, despite  the  express
      bar contained in the Explanation to Section 141 of the Code  of  Civil
      Procedure, in proceedings under Article 226 of the Constitution?

6.       In order to provide the peg on which the above questions are to  be
hung,  it  is  necessary  to  understand  the  background  in   which   such
substantial questions of law have arisen.

7.       The 12th Legislative Assembly Elections in  Haryana  were  held  on
13th October, 2009. After the results of  the  elections  were  declared  on
22nd  October,  2009,  the  Indian  National  Congress  Party,   hereinafter
referred to as ‘the INC’, emerged as the single largest party having won  in
40 out of the 90 seats in the Assembly.  Since it was short of  an  absolute
majority,  the  INC  formed  the  Government  in  collaboration  with  seven
independents and one MLA from the Bahujan  Samaj  Party.   Subsequently,  on
9th November, 2009, four Legislative Members of the Haryana Janhit  Congress
(BL) Party, hereinafter referred to as ‘the HJC (BL)’, wrote to the  Speaker
of their intention to merge the HJC (BL)  with  the  INC  in  terms  of  the
provisions of paragraph 4 of the  Tenth  Schedule  to  the  Constitution  of
India.  The Speaker was requested to accept the merger and to recognize  the
applicant legislators as Members of the INC in the Haryana Vidhan Sabha.

8.       On hearing the four legislators, namely, Shri Satpal Sangwan,  Shri
Vinod Bhayana, Shri Narendra Singh and Shri Zile Ram  Sharma,  who  appeared
before him, the Speaker by his order dated 9th November, 2009, accepted  the
merger with immediate effect, purportedly in terms of  paragraph  4  of  the
Tenth Schedule to the Constitution and directed that from the  date  of  his
order the said four legislators would be recognized as  legislators  of  the
INC in the Haryana Vidhan Sabha.  Thereafter, a similar request was made  to
the Speaker by Shri  Dharam  Singh,  another  Member  of  the  Vidhan  Sabha
elected as a candidate of the HJC (BL) to recognize the merger  of  the  HJC
(BL) with the INC and to also recognize  him,  along  with  the  other  four
legislators,  as  Members  of  the  INC  in  the   Haryana   Vidhan   Sabha.
Subsequently, another application was filed by Shri Dharam Singh before  the
Speaker on 10th November, 2009, requesting him to be recognized  as  a  part
of the INC in the Haryana Vidhan Sabha. The  Speaker  by  a  separate  order
dated 10th November, 2009, allowed the said application  upon  holding  that
the same was in consonance with paragraph 4(1) of the Tenth Schedule to  the
Constitution.

9.        Challenging  the  aforesaid  orders,  the  Respondent  No.1,  Shri
Kuldeep Bishnoi, filed five separate  petitions  before  the  Speaker  under
Article 191 read with the Tenth Schedule to the Constitution  of  India  and
the Haryana Legislative Assembly (Disqualification of Members on  Ground  of
Defection) Rules, 1986, on the ground that they  had  voluntarily  given  up
the membership of their original political party and had joined the  INC  in
violation of the provisions of paragraph 4(1) of the Tenth Schedule.

10.      On receipt of the said petitions, the  Speaker  on  22nd  December,
2009, forwarded copies thereof to the concerned MLAs, asking them to  submit
their comments within  a  period  of  three  weeks.   On  7th  April,  2010,
applications were received by the Speaker from the  concerned  MLAs  praying
for time to  file  their  written  statement.  The  matter  was  accordingly
adjourned and further time was granted to the concerned MLAs to  file  their
explanation.  The Respondent No.1, Shri Kuldeep Bishnoi,  however,  filed  a
Writ Petition, being C.W.P. No.14194 of 2010, in the Punjab &  Haryana  High
Court, seeking quashing of the orders passed by the Speaker on 9th and  10th
November, 2009, and also for a declaration that the five  MLAs  in  question
were disqualified from the membership of the Haryana Vidhan Sabha,  and,  in
the  alternative,  for  a  direction  on  the  Speaker  to  dispose  of  the
disqualification petitions within a  period  of  three  months.   Notice  of
motion was issued to the Respondents on 16th August,  2010,  directing  them
to enter appearance and to file their written statements, within three  days
before the next date of hearing fixed on  1st  September,  2010,  either  in
person or through a duly-instructed Advocate.

11.      On receipt of notice from the High Court, the Speaker by his  order
dated 30th August, 2010,  adjourned  the  hearing  of  the  disqualification
petitions sine die.  On 20th December, 2010, the  learned  Single  Judge  of
the High Court allowed  the  Writ  Petition  and  directed  the  Speaker  to
finally decide the disqualification petitions pending before  him  within  a
period of four months from the date of receipt of the certified copy of  the
order, which direction has given rise to the  question  as  to  whether  the
High  Court  in  its  jurisdiction  under  Articles  226  and  227  of   the
Constitution was competent to issue such a direction to the Speaker who  was
himself a constitutional authority.

12.       In terms of the order passed by  the  learned  Single  Judge,  the
date of hearing of the five disqualification petitions was  fixed  for  20th
January, 2011, by the Speaker.  On the said date, Dharam Singh, one  of  the
Appellants before us, filed his reply  before  the  Speaker  along  with  an
application for striking  out  “the  scandalous,  frivolous  and  vexatious”
averments made in the disqualification petition.   The  matters  had  to  be
adjourned on the said date till 4th  February,  2011,  to  enable  the  Writ
Petitioner to file his  reply  to  the  said  application  and  for  further
consideration.

13.      On the very next day, Letters Patent  Appeal  No.366  of  2011  was
filed by the Speaker, challenging the order passed  by  the  learned  Single
Judge of the High Court on 20th December, 2010.  On  1st  March,  2011,  the
said LPA was listed before the Division Bench which stayed the operation  of
the judgment of the learned Single Judge.  A submission  was  also  made  by
the learned Solicitor General of India, appearing on behalf of the  Speaker,
that every  attempt  would  be  made  to  dispose  of  the  disqualification
petitions as expeditiously as possible.

14.      Thereafter,  the  disqualification  petitions  were  taken  up  for
hearing by the Speaker on 1st April, 2011, and the case was  adjourned  till
20th April, 2011, for further arguments. On 20th April,  2011,  counsel  for
the parties were heard and order  was  reserved  on  the  application  under
Order 6 Rules 2 and 16 of the Code of Civil Procedure, which had been  filed
by Shri Dharam Singh.  By his order dated  27th  April,  2011,  the  Speaker
dismissed the said application  filed  by  Dharam  Singh  and  Shri  Kuldeep
Bishnoi was directed  to  file  his  list  of  witnesses  along  with  their
affidavits within 15 days  from  the  date  of  the  order.    It  was  also
mentioned in the order that counsel for the Respondents would  be  given  an
opportunity to cross-examine the Writ  Petitioner’s  witnesses.  Thereafter,
the Speaker fixed 25th May, 2011, for examination/cross-examination of  Shri
Kuldeep Bishnoi,  MLA,  and  his  witnesses,  and  on  the  said  date  Shri
Bishnoi’s  evidence  was  tendered  and  recorded.   However,   his   cross-
examination could not be completed and the  next  date  for  further  cross-
examination of Shri Kuldeep Bishnoi  was  fixed  for  6th  June,  2011.   In
between, on 2nd June, 2011, the matter came up before the Division Bench  of
the High Court when directions were given for hearing of  the  petitions  at
least every week i.e. at least four times in a month.  However,  on  account
of the sudden  demise  of  Chaudhary  Bhajan  Lal,  M.P.  and  former  Chief
Minister of Haryana, and also  the  father  of  Shri  Kuldeep  Bishnoi,  the
disqualification petitions were adjourned by the  Speaker  till  20th  June,
2011.  On 21st June, 2011, the Speaker fixed all disqualification  petitions
for hearing on 24th June, 2011 and for  further  cross-examination  of  Shri
Kuldeep  Bishnoi.   The  cross-examination  of  Shri  Kuldeep  Bishnoi   was
concluded before the Speaker on 7th July, 2011, and 5th  August,  2011,  was
fixed for recording the evidence of the MLAs.  On 18th July,  2011,  Letters
Patent Appeal No.366 of 2011 and other connected matters were listed  before
the Division Bench of the High Court.  The said Appeal was  heard  on  three
consecutive days when judgment was reserved.

15.      In the meantime,  proceedings  before  the  Speaker  continued  and
since the same were not being concluded in terms of  the  assurances  given,
the Division Bench of the  High  Court  directed  the  Speaker  to  file  an
affidavit on or before 11th November,  2011.   Finally,  being  dissatisfied
with the progress of  the  pending  disqualification  petitions  before  the
Speaker, the Division Bench took  up  the  Letters  Patent  Appeals  on  2nd
December, 2011, when directions were given  for  production  of  the  entire
records of the matter pending before the Speaker.  On  7th  December,  2011,
the relevant records of the proceedings before the  Speaker  were  submitted
to the High Court which adjourned the matter till 19th December,  2011,  for
further consideration.   However, as alleged on behalf  of  the  Appellants,
the Bench was not constituted  on  19th  December,  2011,  and  without  any
further hearing or giving an opportunity to the Speaker’s  counsel  to  make
submissions on the status report, the High Court proceeded to pronounce  its
judgment on the Letters Patent Appeals.  By  its  judgment  which  has  been
impugned in these proceedings, the Division Bench upheld the  directions  of
the  learned  Single   Judge   directing   the   Speaker   to   decide   the
disqualification petitions within a period of four months.   However,  while
disposing of the matter, the Division Bench  stayed  the  operation  of  the
orders passed by the Speaker on the merger of the  HJC  (BL)  with  the  INC
dated 9th November, 2009 and 10th November,  2009.   It  also  declared  the
five MLAs, who have filed separate  appeals  before  this  Court,  as  being
unattached members of the Assembly with the right  to  attend  the  Sessions
only.   It was directed that they would not be treated either as a  part  of
the INC or the HJC(BL) Party, with a further direction that they  would  not
hold any office either.  It is the aforesaid  directions  and  orders  which
have resulted in the filing of the  several  Special  Leave  Petitions  (now
Civil Appeals) before this Court by  the  Speaker  and  the  five  concerned
MLAs.  As a consequence of the order passed by the  Division  Bench  of  the
High Court, the five independent Appellants before us  have  been  prevented
from discharging their functions as Members of  the  Haryana  Vidhan  Sabha,
even before the  disqualification  petitions  filed  against  them  by  Shri
Kuldeep Bishnoi could be heard and decided.

16.      Appearing  for  the  Speaker  of  the  Vidhan  Sabha,  who  is  the
Appellant in the appeal arising out of SLP(C)No.54 of  2012,  Mr.  Rohington
F. Nariman, Solicitor General of India, contended that this was not  a  case
where the survival of the Government depended upon allegiance  of  the  five
MLAs under consideration, since the Government was formed with  the  support
of seven Independents and one MLA from the Bahujan  Samaj  Party.  In  fact,
the  five  MLAs,  against  whom  disqualification  petitions   are   pending
consideration before the Speaker, were not part of the  Government  when  it
was initially formed.

17.       Mr. Nariman contended that the learned Single  Judge  decided  the
issue of merger in terms of  paragraph  4  of  the  Tenth  Schedule  to  the
Constitution by holding that the two orders dated  9th  and  10th  November,
2009, were not final  or  conclusive  and  that,  in  any  event,  when  the
disqualification petitions came to be decided, it  would  be  open  for  the
Speaker to reconsider the issue of merger.  The  learned  Solicitor  General
emphasized the fact that  there  was  neither  any  appeal  nor  any  cross-
objection in respect of the aforesaid decision of the learned  Single  Judge
and even if the same fell within one of the exceptions indicated in  Banarsi
Vs. Ram Phal [(2003) 9 SCC 606], the judgment must still  be  held  to  have
become final between the parties.  The learned Solicitor General urged  that
all the decisions which had been cited on behalf  of  the  Respondent  No.1,
were decisions rendered prior to the judgment  in  Banarsi’s  case  (supra).
It was, therefore, submitted that the decision in Banarsi’s case (supra)  is
the final view in regard to the provisions of Order 41 Rule 33 of  the  Code
of Civil Procedure.

18.      The learned Solicitor General then challenged  the  orders  of  the
Division Bench of  the  High  Court  on  the  ground  of  violation  of  the
principles of natural justice.  It was contended that while the  High  Court
had concluded the hearing and reserved  judgment  on  20th  July,  2011,  by
order dated 12th October, 2011, it directed the Speaker to place  on  record
the status of the proceedings relating to  the  disqualification  petitions.
Although, the same were duly  filed,  without  giving  the  parties  further
opportunity of hearing with regard to the said records, the  Division  Bench
directed  the  matter  to  be  listed  for  further  consideration  on  19th
December, 2011.  It was submitted that though the Bench did not assemble  on
19th December, 2011, the Division Bench delivered the impugned  judgment  on
20th December, 2011, without any  further  opportunity  of  hearing  to  the
parties.

19.      The learned Solicitor General submitted that the procedure  adopted
was contrary to the law laid down in Kihoto Hollohan vs.  Zachillhu  [(1992)
Supp. (2) SCC 651], wherein it was stated as under:-


      “110.   In view of the  limited  scope  of  judicial  review  that  is
      available on account of the finality clause in Paragraph  6  and  also
      having regard to the constitutional intendment and the status  of  the
      repository of the adjudicatory power i.e.  Speaker/Chairman,  judicial
      review cannot be available at  a  stage  prior  to  the  making  of  a
      decision by the Speaker/Chairman and a quia timet action would not  be
      permissible. Nor would interference be permissible at an interlocutory
      stage of the proceedings. Exception will, however, have to be made  in
      respect of cases  where  disqualification  or  suspension  is  imposed
      during the pendency of the proceedings and  such  disqualification  or
      suspension  is  likely  to  have  grave,  immediate  and  irreversible
      repercussions and consequence.”



20. The learned Solicitor General sought to reemphasize the  fact  that  the
present case is not a case involving disqualification  or  suspension  of  a
Member of the House by the Speaker during the pendency of  the  proceedings,
but relates to disqualification  proceedings  pending  before  the  Speaker,
which were not being disposed of  for  one  reason  or  the  other.  It  was
submitted  that  the  fact  that  the  Speaker   had   not   finalized   the
disqualification petitions for almost a period of two years, could  not  and
did not vest the High Court with power to  usurp  the  jurisdiction  of  the
Speaker and to pass interim orders effectively disqualifying the  five  MLAs
in question from functioning effectively  as  Members  of  the  House.   The
learned Solicitor General urged that the  facts  of  this  case  would  not,
therefore, attract the exceptions  carved  out  in  Kihoto  Hollohan’s  case
(supra).

21.      The learned Solicitor General lastly  urged  that  the  single-most
important error in the impugned judgment is that it sought to foreclose  the
right  of  the  Speaker  to  decide  the  disqualification  petitions  under
paragraph 4 of the Tenth Schedule.  The said decision was also  wrong  since
the Division Bench chose to follow judgments which related  to  the  concept
of “split” under paragraph 3 of  the  Tenth  Schedule,  which  today  stands
deleted therefrom.  The learned Solicitor General submitted that  there  was
a clear difference between matters relating to the erstwhile paragraph 3  of
the Tenth Schedule and paragraph 4 thereof.  While paragraph 3 of the  Tenth
Schedule required proof of two splits,  paragraph  4(2)  requires  proof  of
only one deemed merger. The learned Solicitor General submitted  that  there
was no concept of deemed split  in  paragraph  3.   It  was  submitted  that
paragraph  4(2)  is  meant  only  as   a   defence   to   a   petition   for
disqualification and the same would succeed or  fail  depending  on  whether
there was a deemed merger or not.

22.      It was further submitted  that  under  paragraph  4  of  the  Tenth
Schedule, the Speaker was not the deciding authority on whether a merger  of
two political parties had taken place  or  not.    It  was  urged  that  the
expression used in paragraph 4(2) of the Tenth Schedule “for the purpose  of
paragraph 4(1)” clearly indicates that  the  deeming  provision  is  not  in
addition to, but for the  purpose  of  paragraph  4(1),  which  is  entirely
different from the scheme of paragraph 3 which uses  the  expression  “and”,
thereby indicating that a split takes place only if there is a split in  the
original political party and at  least  one-third  of  the  members  of  the
legislature party also joined in. It was further submitted that the  use  of
the expression “if and only if” in paragraph 4 of the Tenth Schedule  is  to
re-emphasize the fact that the Speaker cannot decide whether merger  of  the
original party had taken place, as he is only  required  to  decide  whether
merger was a defence in a disqualification petition filed under paragraph  6
of the Tenth Schedule.

23.      The learned  Solicitor  General  then  urged  that  the  submission
advanced on behalf of the Respondent No.1 that in view of the delay  by  the
Speaker in disposing of the disqualification petitions,  this  Court  should
decide the same, was wholly misconceived, since it pre-supposes the  vesting
of power to decide such a question on the Court, though the same is  clearly
vested in the Speaker.  Even otherwise, in the absence of any Special  Leave
Petition by the Respondent No.1, the most that could be done by  this  Court
would be to dismiss the Special Leave Petition.

24.      Distinguishing the various  decisions  cited  before  the  Division
Bench on behalf of the Respondent No.1, and, in particular, the decision  in
Rajendra Singh Rana vs. Swami Prasad Maurya [(2007) 4 SCC 270], the  learned
Solicitor General submitted that in the said case, the life of the  Assembly
was almost over, whereas in the present case  the  next  election  would  be
held only in October, 2014.  Furthermore, the same was a judgment where  the
final orders passed by the Speaker on the  disqualification  petitions  were
under challenge, unlike in  the  present  case  where  the  disqualification
petitions are still pending decision with the Speaker.

25.      The learned Solicitor General submitted that  if  the  decision  in
Rajendra Singh Rana’s  case  (supra)  which,  inter  alia,  dealt  with  the
question relating to the Speaker’s powers to decide a  question  in  respect
of paragraph 4 of the Tenth Schedule independent of  any  application  under
paragraph 6 thereof, is to be made applicable in the  facts  of  this  case,
the same would be contrary to the  decision  of  this  Court  in  Raja  Soap
Factory vs. S.P. Shantharaj [(1965)  2  SCR  800].   The  learned  Solicitor
General also made special  reference  to  the  decision  of  this  Court  in
Mayawati vs. Markandeya Chand & Ors. [(1998) 7 SCC  517],  wherein  it  was,
inter alia, held that if the order of the  Speaker  disqualifying  a  Member
was to be set aside, the matter had to go back to the Speaker  for  a  fresh
decision, since it was not the function of this Court to  substitute  itself
in place of the Speaker and decide the question  which  had  arisen  in  the
case.

26.      In addition to his aforesaid  submissions,  the  learned  Solicitor
General also submitted that various substantial questions of law  in  regard
to the interpretation of the Constitution, had arisen in the  facts  of  the
present case, namely,

     a) Whether paragraph 4 of the Tenth Schedule to the Constitution, read
        as a whole, contemplates that  when  at  least  two-thirds  of  the
        members of the legislature party agree  to  a  merger  between  one
        political party and another, only then there is a  “deemed  merger”
        of one original political party with another?


     b) Whether in view of the difference in language between paragraphs  3
        and 4 of the Tenth Schedule, a deemed merger is the only  thing  to
        be looked at as opposed to a “split” which must be in  an  original
        political party cumulatively with a group consisting  of  not  less
        than one third of the members of the legislature party?



     c) Whether post-merger, those who do not accept the merger are subject
        to the anti-defection law prescribed in the Tenth Scheudle?


     d) Whether there is a  conflict  between  the  five-judge  Benches  in
        Rajendra Singh Rana v Swami Prasad Maurya,  (2007)  4  SCC  270  as
        against Kihoto Hollohan, 1992 Supp (2) SCC 651  and  Supreme  Court
        Advocate-on-Record Association case, (1988) 4 SCC 409?


     e) What is the status of an ‘unattached’ Member  in  either  House  of
        Parliament or in the State Legislature? [already under reference to
        a larger Bench in Amar Singh v Union of India, (2011) 1 SCC 210]?


     f) Whether in view of Article 212(2) of the Constitution of India,  if
        a Speaker of a State Legislature fails to  decide  a  Petition  for
        disqualification, he would not be subject to  the  jurisdiction  of
        any Court?


     g) Whether the Speaker, while exercising original  jurisdiction/powers
        in a  disqualification  petition  under  Para  6(1)  of  the  Tenth
        Schedule to the Constitution of India, has power  to  pass  interim
        orders?


27.        According  to  the  learned  Solicitor  General,  the   aforesaid
questions,  which  involved   interpretation  of  the   Constitution,   were
required to be decided by a Bench of not less than 5 Judges in view  of  the
constitutional mandate in Article  145(3)  of  the  Constitution,  before  a
final decision was taken in these appeals.

28.      Appearing for Shri Kuldeep Bishnoi,  the  Respondent  No.1  in  the
appeals preferred by the Speaker, Haryana Vidhan Sabha, and the  five  MLAs,
against whom disqualification proceedings were pending, Mr.  Nidhesh  Gupta,
learned Senior Advocate, at the very threshold of  his  arguments  submitted
that this was a case which clearly demonstrated how the process of  law  was
being misapplied and misused by the Speaker of the Haryana Vidhan Sabha,  so
as to defeat the very purpose and objective of  the  anti-defection  law  as
contained in the Tenth Schedule to the Constitution.  Mr.  Gupta  emphasized
in great detail the manner in which the Speaker had deferred the hearing  of
the disqualification petitions filed by  the  Respondent  No.1  against  the
five MLAs,  on  one  pretext  or  the  other,  despite  the  fact  that  the
applications  for  disqualification  under  paragraph  4(2)  of  the   Tenth
Schedule to the Constitution had been made as far back as on  9th  December,
2009.

29.      Mr. Gupta submitted that  till  today,  the  said  disqualification
applications are pending decision before the Speaker and  since  such  delay
in the disqualification proceedings was against the very  grain  and  object
of the Tenth Schedule to the Constitution, the Division Bench  of  the  High
Court had no other  option  but  to  pass  appropriate  orders  by  invoking
jurisdiction under Order 41 Rule 33 of the  Code  of  Civil  Procedure.   In
effect, the entire burden of Mr. Gupta’s submissions  was  directed  against
the prejudice caused to the Respondent No.1 on account of  the  inaction  on
the part of  the  Speaker  in  disposing  of  the  pending  disqualification
petitions within a  reasonable  time.   Mr.  Gupta  sought  to  justify  the
impugned order passed by the Division Bench of the High Court on the  ground
that on account of the deliberate delay  on  the  part  of  the  Speaker  in
allowing the five dissident MLAs from continuing to function as  Members  of
the House despite their violation of the provisions  of  paragraph  4(4)  of
the Tenth Schedule to the Constitution, the High Court in  exercise  of  its
appellate powers under Order 41 Rule 33 of the Code of Civil Procedure  gave
interim directions so as to ensure that the Petitioner  before  the  Speaker
was  non-suited  on  account  of  the  Speaker’s  attempts  to   delay   the
disqualification of the said five MLAs.

30.      Mr. Gupta submitted that by virtue of the interim order  passed  by
the Division Bench of the High Court under Order 41 Rule 33 of the  Code  of
Civil Procedure, hereinafter referred to as “CPC”,  the  High  Court  merely
suspended the said Members from discharging all their functions  as  Members
of the House, without touching their membership.  He submitted that  such  a
course of action was the only remedy available to the High Court to  correct
the deliberate and willful attempt  by  the  Speaker  to  subvert  the  very
essence of the Tenth Schedule to the Constitution.

31.      For all the submissions advanced by Mr. Gupta, the main  weapon  in
his armoury is Order 41 Rule 33 CPC.  The  same  is  only  to  be  expected,
since no final order had been passed by the Speaker on the  disqualification
petitions, which would have entitled the High Court to pass  interim  orders
in exercise of its powers under Article 226 and  227  of  the  Constitution,
since it is only the Speaker, who under paragraph 6  of  Tenth  Schedule  to
the  Constitution,  is  entitled  to   decide   questions   in   regard   to
disqualification of a Member of  the  House  on  the  ground  of  defection.
Furthermore,  all  the  different  cases  cited  by  Mr.  Gupta  relate   to
proceedings taken against final orders passed  by  the  respective  Speakers
and the width of the jurisdiction of the High Court under Articles  226  and
227 of the Constitution.

32.      Mr. Gupta dealt separately with the law relating to Order  41  Rule
33 CPC in support of his contention that under the said provision, the  High
Court was competent to  pass  interim  orders  effectively  disqualifying  a
Member of the House, notwithstanding the provisions of paragraph 6 of  Tenth
Schedule to the Constitution.  Mr. Gupta has relied heavily on the  decision
of this Court in Mahant Dhangir & Anr.  vs.  Madan  Mohan  &  Ors.   [(1987)
Supp. SCC 528] wherein, while considering the width  of  Order  41  Rule  33
CPC, this Court was of the view that a litigant should not be  left  without
remedy against the judgment of a learned Single Judge and that if  a  cross-
objection under Rule 22 of Order 41 CPC was not maintainable against the co-
respondent, the Court could consider it under  Rule  33  of  Order  41  CPC.
This Court held that Rules 22 and 33 are not  mutually  exclusive,  but  are
closely related to each other. If objection could not be  taken  under  Rule
22 against the co-respondent, Rule 33  could  come  to  the  rescue  of  the
objector. It was also observed that “the sweep of the power  under  Rule  33
is wide enough to determine any question, not  only  between  the  appellant
and respondent, but also between the  respondent  and  co-respondents.   The
appellate court could pass any decree or order  which  ought  to  have  been
passed in the circumstances of the case.”

33.      Mr. Gupta urged that the law, as declared by this Court,  indicates
that under Order 41 Rule 33 CPC, this  Court  as  an  appellate  Court,  has
power to pass any decree or make any order which ought to have  been  passed
or make such further decree or order as the case may require.

34.      Mr. Gupta also referred to the Constitution Bench decision of  this
Court in L. Chandra Kumar vs. Union of India [(1997) 3 SCC  261],  in  which
the Bench was considering the question as to whether under  clause  2(d)  of
Article 323-A, the jurisdiction of all Courts, except  the  jurisdiction  of
this Court under Article 136 of the Constitution, was excluded.

35.      The very foundation of Mr. Gupta’s submissions is based upon  Order
41 Rule 33 CPC which  ordinarily  empowers  the  Civil  Court  to  pass  any
interim order in appeal.  What we are,  however,  required  to  consider  in
these appeals is whether such jurisdiction could at all  have  been  invoked
by the High Court when no final order had been passed by the Speaker on  the
disqualification petitions.

36.      Mr. Gupta lastly urged that the ground relating to the  mala  fides
of  the  Speaker’s  inaction  in  delaying  the  final   decision   in   the
disqualification proceedings, had not been given up  finally,  as  the  very
conduct of the Speaker revealed such mala fides at  almost  every  stage  of
the pending proceedings.

37.      While adopting the submissions made by the Solicitor  General,  Mr.
K.K. Venugopal and Mr. Mukul Rohatgi, learned senior counsel, appearing  for
the Appellants in the  other  appeals,  submitted  that  the  order  of  the
Division Bench would have  far-reaching  consequences  since  the  power  to
decide  all  matters  relating  to  disqualification  of  Members   of   the
Legislative Assembly were vested in the Speaker under  paragraph  6  of  the
Tenth Schedule to the Constitution.

38.      During the pendency of the Special Leave Petitions, I.A. Nos.2  and
3 were filed in Special Leave Petition (Civil) No.54 of 2012 by S/Shri  Ajay
Singh Chautala and Sher Singh Barshami, both  MLAs  in  the  Haryana  Vidhan
Sabha. A further application, being I.A. No.4 of  2012,  was  filed  by  one
Shri Ashok Kumar Arora, who is also an MLA of the Haryana Vidhan Sabha.  The
prayer in all the said applications  was  for  leave  to  intervene  in  the
Special Leave Petition filed by the Speaker of  the  Haryana  Vidhan  Sabha.
The same were allowed by Order dated 28th February, 2012.

39.      Pursuant to the said  order,  Dr.  Rajeev  Dhawan,  learned  senior
counsel, appeared for Shri Ajay Singh Chautala  and  the  other  interveners
and urged that the orders passed by the Speaker on 9th  and  10th  November,
2009, were void ab-initio and in excess of  jurisdiction.  However,  in  the
lengthy submissions advanced by Dr. Dhawan in relation to the provisions  of
erstwhile paragraph  3  and  paragraph  4  of  the  Tenth  Schedule  to  the
Constitution, reference  was  made  to  various  decisions  of  this  Court,
including that  in  Rajendra  Singh  Rana’s  case  (supra).  The  same  are,
however, all based on decisions taken by the  Speaker  on  the  question  of
“split” or “merger”, while in the instant case we  are  concerned  with  the
inaction of the Speaker  in  disposing  of  the  disqualification  petitions
filed by the Respondent No.1 and the  jurisdiction  of  the  High  Court  to
issue interim orders restraining a Member of the House from discharging  his
functions as an elected  representative  of  his  constituents  despite  the
provisions of paragraph 6 of the Tenth Schedule to the Constitution.

40.      Most of the questions raised by Mr. Nidhesh Gupta  and  Dr.  Rajeev
Dhawan contemplate a situation where the Speaker had taken a final  decision
on a disqualification petition. However, in the instant case we  are  really
required to consider whether the High Court was competent  to  pass  interim
orders under its powers of judicial review under Articles  226  and  227  of
the Constitution when the disqualification proceedings were  pending  before
the Speaker. In fact, even in Kihoto  Hollohan’s  case  (supra),  which  has
been referred to in extenso by Dr. Dhawan, the scope of judicial review  has
been confined to violation of  constitutional  mandates,  mala  fides,  non-
compliance with rules of natural justice and perversity,  but  it  was  also
very clearly indicated that having regard to the  constitutional  scheme  in
the Tenth Schedule, normally judicial  review  could  not  cover  any  stage
prior to the making of the decision by the Speaker or the  Chairman  of  the
House, nor any quia timet action was contemplated or permissible.

41.      From the submissions made on  behalf  of  the  respective  parties,
certain important issues emerge for consideration.  One of the  said  issues
raised by Mr. Nidhesh Gupta concerns the competence of  the  High  Court  to
assume jurisdiction  under  Order  41  Rule  33  CPC  when  disqualification
petitions were pending before the Speaker and were yet to  be  disposed  of.
Another important issue which  arises,  de  hors  the  submissions  made  on
behalf  of  the   respective   parties,   is   whether   the   question   of
disqualification on account of  merger,  which  had  been  accepted  by  the
Speaker, could have been entertained by the Speaker  under  paragraph  4  of
The Tenth Schedule, when such powers were vested exclusively in the  Speaker
under paragraph 6 thereof.

42.      Relying on the decisions of this Court in  Kihoto  Hollohan’s  case
(supra), Jagjit Singh Vs. State of Haryana [(2006) 11 SCC 1] and  Mayawati’s
case (supra), the learned Single Judge came to  the  conclusion  that  while
passing  an  order  under  paragraph  4  of  the  Tenth  Schedule   to   the
Constitution, the Speaker does not act as  a  quasi-judicial  authority  and
that  such  order  would  necessarily  be  subject  to  adjudication   under
paragraph 6.

43.      Accordingly, the main challenge to the  impugned  decision  of  the
Division Bench of the Punjab & Haryana High Court  is  with  regard  to  the
competence of the  Speaker  of  the  Assembly  to  decide  the  question  of
disqualification of the Members of the Haryana Janhit  Congress  (BL)  Party
on their joining the Indian National Congress Party  on  the  basis  of  the
letters written by  the  five  Members  of  the  former  legislature  party.
Incidentally, the learned Single Judge held that the issue would have to  be
decided by  the  Speaker  himself  while  considering  the  disqualification
petitions under paragraph 6 of  the  Tenth  Schedule  to  the  Constitution.
What is important, however, is the question as to whether  such  a  decision
could be arrived  at  under  paragraph  4  of  the  Tenth  Schedule  to  the
Constitution whereunder the Speaker has not  been  given  any  authority  to
decide such an issue.  Paragraph 4 merely  indicates  the  circumstances  in
which a Member of a House shall not be disqualified under Sub-paragraph  (1)
of Paragraph 2. One of the circumstances indicated  is  where  the  original
political party merges with another political party and  the  Member  claims
that he and any other Member of his original  political  party  have  become
Members of such other political party, or, as the case  may  be,  of  a  new
political  party  formed  by  such  merger.   As  stressed  by  the  learned
Solicitor General, for the purpose of sub-paragraph (1), the merger  of  the
original political party of a Member of the House, shall be deemed  to  have
taken place if, and only if, not less than two-thirds of the Members of  the
legislature party concerned agreed  to  such  merger.   In  other  words,  a
formula has been laid down in paragraph 4  of  the  Tenth  Schedule  to  the
Constitution, whereby such Members as came within such formula could not  be
disqualified on ground of defection in case of the merger  of  his  original
political party with another political party in the circumstances  indicated
in paragraph 4(1) of the Tenth Schedule to the Constitution.

44.      The scheme of the Tenth  Schedule  to  the  Constitution  indicates
that the Speaker is  not  competent  to  take  a  decision  with  regard  to
disqualification on ground  of  defection,  without  a  determination  under
paragraph 4, and paragraph 6 in no uncertain terms lays  down  that  if  any
question arises as to whether a Member of the House has  become  subject  to
disqualification, the said question would be  referred  to  the  Speaker  of
such House whose decision would be final.  The finality of the decisions  of
the Speaker was  in  regard  to  paragraph  6  since  the  Speaker  was  not
competent to decide a question as to whether  there  has  been  a  split  or
merger  under  paragraph  4.   The  said  question  was  considered  by  the
Constitution Bench in Rajendra Singh Rana’s case (supra).  While  construing
the provisions of the Tenth Schedule to  the  Constitution  in  relation  to
Articles 102 and 191 of the Constitution, the  Constitution  Bench  observed
that the whole proceedings under the Tenth  Schedule  gets  initiated  as  a
part of disqualification proceedings.  Hence, determination of the  question
of split or merger could not be divorced from the motion before the  Speaker
seeking  a  disqualification  of  the  Member  or  Members  concerned  under
paragraph 6 of the Tenth Schedule. Under the scheme of  the  Tenth  Schedule
the Speaker does not have an independent power  to  decide  that  there  has
been split or merger as contemplated by paragraphs 3 and 4 respectively  and
such a decision can be taken only  when  the  question  of  disqualification
arises in a proceeding under  paragraph  6.    It  is  only  after  a  final
decision is rendered by the Speaker under paragraph 6 of the Tenth  Schedule
to the Constitution that the jurisdiction of the High  Court  under  Article
226 of the Constitution can be invoked.

45.      We have to keep in mind the  fact  that  these  appeals  are  being
decided in the background of the complaint made to the effect  that  interim
orders have been passed by the High  Court  in  purported  exercise  of  its
powers to judicial review under Articles 226 and 227  of  the  Constitution,
when the disqualification proceedings were pending before the  Speaker.   In
that regard, we are of the view that since the decision of the Speaker on  a
petition under paragraph 4 of the Tenth Schedule concerns  only  a  question
of merger on which the Speaker is  not  entitled  to  adjudicate,  the  High
Court could not have assumed jurisdiction under its powers of review  before
a decision was taken by the Speaker under paragraph 6 of the Tenth  Schedule
to the Constitution.  It is in fact in a proceeding under paragraph  6  that
the Speaker assumes jurisdiction to pass a  quasi-judicial  order  which  is
amenable to the writ  jurisdiction  of  the  High  Court.   It  is  in  such
proceedings that the question relating to  the  disqualification  is  to  be
considered and decided.  Accordingly, restraining the  Speaker  from  taking
any decision under paragraph 6 of  the  Tenth  Schedule  is,  in  our  view,
beyond the jurisdiction of the High Court,  since  the  Constitution  itself
has vested the Speaker with the power to take a decision under  paragraph  6
and care has also been taken to indicate that such decision of  the  Speaker
would be  final.   It  is  only  thereafter  that  the  High  Court  assumes
jurisdiction to examine the Speaker’s order.

46.      The submissions made by Mr. Nidhesh  Gupta  relating  to  Order  41
Rule 33, in our view, are not of much relevance on account of what  we  have
indicated hereinabove.  Order 41 Rule 33  vests  the  Appellate  Court  with
powers to pass any decree and make  any  order  which  ought  to  have  been
passed or made and to pass or make such  further  or  other  decree  or  the
order, as the case may require.  The said power is vested in  the  Appellate
Court by the statute itself, but the principles thereof  cannot  be  brought
into play  in  a  matter  involving  a  decision  under  the  constitutional
provisions of the Tenth Schedule to  the  Constitution,  and  in  particular
paragraph 6 thereof.

47.      The appeal filed by the Speaker, Haryana Vidhan Sabha, against  the
judgment of the Division  Bench  of  the  High  Court,  is  not,  therefore,
capable  of  being  sustained  and  the  Appeal  filed  by  the  Speaker  is
accordingly  dismissed.   The  other   Appeals   preferred   by   the   five
disqualified MLAs have, therefore, to  be  allowed  to  the  extent  of  the
directions given by the learned Single Judge and endorsed  by  the  Division
Bench  that  the  five  MLAs  would  stand  disqualified  from   effectively
functioning as Members of the Haryana Vidhan Sabha till the Speaker  decided
the petitions regarding their disqualification,  within  a  period  of  four
months.

48.      In our view, the High Court had no jurisdiction  to  pass  such  an
order, which was in the domain of the Speaker. The High  Court  assumed  the
jurisdiction which it never had in making the interim order  which  had  the
effect of preventing the five MLAs in question from effectively  functioning
as Members of the Haryana Vidhan Sabha.  The direction given by the  learned
Single Judge to  the  Speaker,  as  endorsed  by  the  Division  Bench,  is,
therefore, upheld to the extent that it directs the Speaker  to  decide  the
petitions for disqualification of the five MLAs  within  a  period  of  four
months.  The  said  direction  shall,  therefore,  be  given  effect  to  by
Speaker.  The remaining portion of the order  disqualifying  the  five  MLAs
from effectively functioning as Members of the Haryana Vidhan Sabha  is  set
aside.  The said five MLAs would, therefore, be entitled to  fully  function
as Members of the Haryana Vidhan Sabha without any restrictions, subject  to
the  final  decision  that  may  be  rendered  by   the   Speaker   in   the
disqualification petitions filed under paragraph 6 of the Tenth Schedule  to
the Constitution.

49.       The  Speaker  shall  dispose  of  the  pending  applications   for
disqualification of the five MLAs in  question  within  a  period  of  three
months from the date of communication of this order.

50.      Having regard to the peculiar facts of the case, the parties  shall
bear their own costs.

                                                     ………………………………………………………J.

                                               (ALTAMAS KABIR)








                                                     ………………………………………………………J.

                                               (J. CHELAMESWAR)

New Delhi
Dated:28.09.2012.

Order VI Rule 17 which is as under:- “17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties. 16) In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                                      1


                     2 CIVIL APPEAL NO.   7043   OF 2012


                 3 (Arising out of SLP (C) No. 6324 of 2008




Abdul Rehman & Anr.                                            ...
Appellant (s)

            Versus

Mohd. Ruldu & Ors.                                           . ...
Respondent(s)





                               J U D G M E N T

P. Sathasivam, J.
1)    Leave granted.
2)    This appeal is filed against the judgment and order  dated  13.11.2007
passed by the High  Court  of  Punjab  &  Haryana  at  Chandigarh  in  Civil
Revision No. 4486 of 2007 whereby the  High  Court  dismissed  the  revision
filed by the appellants herein and  confirmed  the  order  dated  06.06.2007
passed by the Civil Judge (Jr. Division) Malerkotla in an application  filed
by the appellants herein for amendment of the plaint.

3)    Brief Facts:
(a)   Originally one Jhandu, resident  of  Village  Haider  Nagar,  was  the
owner and in possession of land admeasuring 53 bighas 11 biswas  at  village
Haider Nagar, Tehsil Malerkotla and 33 bighas 15 biswas situated at  Village
Binjoli Kalan, Tehsil Malerkotla.  Jhandu died leaving behind Khuda  Bux  as
his son and Aishan and Kaki as his daughters.  The mutation  of  inheritance
was sanctioned in favour of Khuda Bux alone being his son.
(b)    Feeling  aggrieved  by  the  aforesaid  mutation,  Kaki  and   Aishan
(daughters of Jhandu) filed Suit No.  280/162  against  Khuda  Bux  claiming
9/36 share each in the said lands before the subordinate Judge,  Ist  Class,
Sangrur, Camp at Malerkotla.   By  order  dated  20.12.1971,  the  sub-Judge
dismissed the said suit.

(c)   Challenging the said judgment, Kaki and Aishan filed an  appeal  being
Civil Appeal No. 21 of 1972 before the  District  Judge,  Sangrur.      Vide
order dated 04.07.1972 passed by the District Judge,  the  said  appeal  was
dismissed as withdrawn in terms of the compromise  arrived  at  between  the
parties. According to the terms of the compromise, it was agreed that  Khuda
Bux shall be entitled to retain possession of land admeasuring 34 Bighas  13
Biswas in village Haider Nagar with the  condition  that  he  and  his  wife
Ramzanan will receive the produce of the suit land during  their  life  time
but they will have no right to alienate it by way of sale, mortgage  or  any
other form.  After the death of Khuda Bux and his wife, the said land  would
be divided among the four sons of Khuda Bux in equal shares.  The  remaining
land owned by Khuda Bux in Binjoli and Haider Nagar was partitioned  by  him
amongst his four sons in the manner set out in the compromise deed.
(d)   On 12.09.1986, Khuda Bux executed a sale deed  transferring  ownership
and possession of land admeasuring  17  Bighas  and  10  biswas  in  village
Haider Nagar in favour of the appellants herein.  Challenging the said  sale
deed, the other two sons and two daughters of Khuda Bux filed a suit  before
the sub-Judge, Malerkotla.  The sub-Judge dismissed the said  suit  and  set
aside the sale deed dated 12.09.1986. The said order was  further  confirmed
in appeal.

(e)   After the death of Khuda Bux, Ramzanan - his wife filed Suit  No.  308
of 2002 before the Civil Judge, Malerkotla  for  declaration  and  permanent
prohibitory injunction against all her children.   In  the  above  suit,  on
24.12.2002, she also filed an application under Order XXXIX Rules 1 &  2  of
the Code of Civil Procedure, 1908 (hereinafter referred to  as  “the  Code”)
seeking an injunction against the appellants herein  from  interfering  with
her possession.  The said application was dismissed.  Against the  dismissal
of the said application, she filed an appeal being  C.M.A.  No.  7  of  2003
before the Additional District Judge, Sangrur.  By order  dated  06.08.2003,
the Additional District Judge dismissed the same.
(f)   Vide  registered  sale  deed  Nos.  1810  and  1811  dated  25.08.2003
Ramzanan (wife of Khuda Bux) and Bashiran and Rashidan (daughters  of  Khuda
Bux) sold some lands to respondent No.1 to 3  herein and tried  to  forcibly
dispossess the appellants and respondent No.4 herein from  the  lands  under
their possession.
g)    The appellants filed Suit No. 320 of 2003 in the Court of Civil  Judge
(Jr. Division) Malerkotla, for permanent prohibitory injunction  restraining
respondent Nos. 1-3 herein from forcibly  and  illegally  dispossessing  the
appellants from the land in dispute.
(h)   In the said suit,  the  appellants  herein  filed  an  application  on
17.09.2004 under Order VI Rule 17 read with Section  151  of  the  Code  for
amendment of the plaint.   The  trial  Court,  by  order  dated  06.06.2007,
dismissed the said application.
(i)   Being  aggrieved  by  the  said  order,  the  appellants  filed  Civil
Revision No. 4486 of 2007 before the High Court of  Punjab  &  Haryana.   By
impugned judgment dated  13.11.2007,  the  High  Court  dismissed  the  said
revision.
(j)   Aggrieved by the said judgment, the appellants have filed this  appeal
by way of special leave.
4)    Heard Ms. Manmeet Arora, learned counsel  for  the  appellants.   None
appeared for the respondents.
5)    The only point  for  consideration  in  this  appeal  is  whether  the
appellants herein have made out a case for amendment of the plaint in  terms
of Order VI Rule 17 of the Code.
6)    Before considering the factual details and  the  materials  placed  by
the appellants praying for amendment of their plaint, it is useful to  refer
Order VI Rule 17 which is as under:-
      “17. Amendment of  pleadings.—The  Court  may  at  any  stage  of  the
      proceedings allow either party to alter or amend his pleadings in such
      manner and on such terms as may be just, and all such amendments shall
      be made as may be necessary for the purpose of  determining  the  real
      questions in controversy between the parties:


      Provided that no application for amendment shall be allowed after  the
      trial has commenced, unless the Court comes to the conclusion that  in
      spite of due diligence, the party could not  have  raised  the  matter
      before the commencement of trial.”

7)    It is clear that parties to the suit are permitted  to  bring  forward
amendment of their pleadings at any stage of the proceeding for the  purpose
of determining the real question in controversy between  them.   The  Courts
have to be liberal in accepting the same, if the same is made prior  to  the
commencement  of  the  trial.   If  such  application  is  made  after   the
commencement of the trial, in that event, the  Court  has  to  arrive  at  a
conclusion that in spite of due diligence, the party could not  have  raised
the matter before the commencement of trial.

8)    The original provision was  deleted  by  Amendment  Act  46  of  1999,
however, it has again been restored by Amendment Act 22 of 2002 but with  an
added proviso to prevent application for amendment being allowed  after  the
trial has commenced, unless the Court comes to the conclusion that in  spite
of due diligence, the party could not have  raised  the  matter  before  the
commencement  of  trial.   The  above  proviso,  to  some  extent,  curtails
absolute discretion to  allow  amendment  at  any  stage.   At  present,  if
application is filed after commencement of trial, it has to  be  shown  that
in spite of due diligence, it could not  have  been  sought  earlier.    The
object of the rule is that Courts should try the merits  of  the  case  that
come before them and should, consequently, allow all amendments that may  be
necessary for determining the  real  question  in  controversy  between  the
parties provided it does not cause  injustice  or  prejudice  to  the  other
side.  This Court, in a series of decisions  has  held  that  the  power  to
allow the amendment is wide and  can  be  exercised  at  any  stage  of  the
proceeding in the interest of justice.  The main  purpose  of  allowing  the
amendment is to minimize the litigation and the plea that the relief  sought
by way of amendment was barred by time is to be considered in the  light  of
the facts and circumstances of each case.  The above  principles  have  been
reiterated by this Court in J.  Samuel  and  Others  vs.  Gattu  Mahesh  and
Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs.  Rajmala  Exports  Pvt.
Ltd. and Others, (2012) 5 SCC 337.  Keeping the above  principles  in  mind,
let us consider whether the appellants have made out a case for amendment.
9)    It is true that originally the appellants have  approached  the  trial
Court  with  a  prayer  for  permanent  prohibitory  injunction  restraining
respondent Nos. 1-3 herein from forcible and illegal  dispossession  of  the
appellants herein from the land in  dispute.   Respondent  Nos.  1-3  herein
(Defendant  Nos.  1-3  therein)  filed  written   statement   wherein   they
specifically alleged that they have stepped into the shoes of  Ramzanan  and
Smt. Bashiran and Rashidan on the basis of the sale deeds dated  25.08.2003.
 It is the claim of the appellants that the above  said  Ramzanan  and  Smt.
Bashiran and Rashidan have no concern with the  ownership  of  the  land  in
dispute and no right to alienate the suit land to the defendants or  anybody
else. In view of  the  stand  taken  by  the  defendants  in  their  written
statement, in the application filed under Order VI Rule 17 of the Code,  the
appellants have specifically raised that the alleged  sale  deed  Nos.  1810
and 1811 dated 25.08.2003 in  favour  of  defendant  Nos.  1-3  executed  by
Ramzanan and Bashiran and Rashidan are liable to be set aside  and  have  no
effect on the rights of the plaintiffs and Saifur-Rehman qua the  suit  land
and the mutation Nos. 781 and 782 sanctioned on the  basis  of  above  noted
sale deeds dated 25.08.2003 are also liable to be set  aside.   In  view  of
the claim of the appellants, we verified  the  necessary  averments  in  the
written statement of Defendant Nos. 1 and 3 and we agree with the  stand  of
the appellants.
10)   Next, we have to see whether the proposed amendments would  alter  the
claim/cause of action of the plaintiffs.  In view of the same,  we  verified
the averments in the un-amended plaint.   As  rightly  pointed  out  by  Ms.
Manmeet Arora, learned counsel for the appellants that  the  entire  factual
matrix for the relief sought for under the proposed  amendment  had  already
been set out in the un-amended plaint.  We are satisfied that the  challenge
to the voidness of those sale deeds was implicit in the factual  matrix  set
out in the un-amended plaint and, therefore, the relief of  cancellation  of
sale deeds as sought by amendment does not change the nature of the suit  as
alleged.  It is settled law that if necessary factual  basis  for  amendment
is already contained in the plaint, the relief  sought  on  the  said  basis
would not change the nature of the suit.  In view of the same, the  contrary
view expressed by the trial Court and High Court cannot  be  sustained.   It
is not in dispute that  the  relief  sought  by  way  of  amendment  by  the
appellants could also be claimed by them by way of a separate  suit  on  the
date of filing of the application.  Considering the date of the  sale  deeds
and the date on which  the  application  was  filed  for  amendment  of  the
plaint, we are satisfied that the reliefs claimed are not barred in law  and
no prejudice should have been caused to respondent Nos. 1-3 (defendant  Nos.
1-3 therein) if  the  amendments  were  allowed  and  would  in  fact  avoid
multiciplity of litigation.

11)   Learned counsel for the appellants has  also  brought  to  our  notice
that the amendments were necessitated due to the observations  made  by  the
High Court in its earlier order dated 19.04.2007 in C.R. No.  3361  of  2007
to the effect that the appellants’  application  for  ad-interim  injunction
without seeking cancellation of the sale deeds is  not  maintainable.   This
aspect has not been noticed by the trial Court as well  as  the  High  Court
while considering the application filed under Order VI Rule 17 of the  Code.

12)   It is also brought to our notice that respondent Nos. 2 and  3  herein
– transferees under the sale deed, are the nephews of the appellants  herein
and the transferors and the purchase of the suit land by  them  is  void  to
their knowledge as they were equally bound by the judgment dated  20.12.1971
and compromise deed dated 04.07.1972 declaring  that  under  the  applicable
customary law of inheritance to the parties therein,  widows  and  daughters
have no right of inheritance in the presence of the sons.  It is  the  claim
of the appellants that in view of the same, respondents  –  transferees  are
not bona fide  purchasers  of  the  suit  land.   Learned  counsel  for  the
appellants again brought to our notice that these  facts  were  specifically
stated  in  the  un-amended  plaint  and,   therefore,   amendment   seeking
incorporation of relief of declaration that the sale  deeds  are  void  does
not change the nature of the suit.  Because of those allegations in the  un-
amended plaint, the same was denied  by  the  defendants  in  their  written
statement and we are satisfied that the necessary factual matrix as  regards
the relief of cancellation was already on record and the same was  an  issue
arising between the parties.
13)    In  view  of  the  stand   taken   by   the   respondent   Nos.   1-3
herein/Defendant Nos. 1-3 in their written statement and the observation  of
the High Court in the application filed for injunction, we are of  the  view
that the proposed amendment to include a relief of declaration of title,  in
addition to the permanent injunction, is to protect their interest  and  not
to change the basic nature of the suit as alleged.
14)    In Pankaja & Anr. vs. Yellapa (Dead) By Lrs. & Ors. AIR 2004 SC  4102
= (2004) 6 SCC 415, this Court held that if the  granting  of  an  amendment
really  subserves  the  ultimate  cause  of  justice  and   avoids   further
litigation, the same should be  allowed.   In  the  same  decision,  it  was
further held that an  amendment  seeking  declaration  of  title  shall  not
introduce a different relief when the necessary factual  basis  had  already
been laid down in the plaint in regard to the title.
15)   We reiterate that all amendments which are necessary for  the  purpose
of determining the real questions in controversy between the parties  should
be allowed if it does not change the basic nature of the suit.  A change  in
the nature of relief claimed shall not be considered  as  a  change  in  the
nature of suit and the power of amendment should be exercised in the  larger
interests of doing full and complete justice between the parties.
16)   In the light of various principles which we  have  discussed  and  the
factual matrix as demonstrated by learned counsel  for  the  appellants,  we
are satisfied that the appellants have made out a case for amendment and  by
allowing the same, the respondents herein (Defendant Nos.  1-3)  are  in  no
way prejudiced and  they  are  also  entitled  to  file  additional  written
statement if they so desire.  Accordingly, the  order  of  the  trial  court
dated 06.06.2007 dismissing the application for amendment of plaint in  Suit
No. 320 of 2003 as well as the High Court in  Civil  Revision  No.  4486  of
2007 dated 13.11.2007 are set  aside.   The  application  for  amendment  is
allowed.  Since the suit is of the year 2003, we direct the trial  Court  to
dispose of the same within a period of six months from the date  of  receipt
of copy of the judgment after  affording  opportunity  to  all  the  parties
concerned.  The appeal is allowed.  No order as to costs.

                             ...…………….…………………………J.


                                 (P. SATHASIVAM)








                              .…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
SEPTEMBER 27, 2012.







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