Punjab-Haryana High Court
Parkasho Devi And Others vs Khajoor Singh And Others on 14 October, 2010
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 6778 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 6778 of 2010
Date of Decision : October 14, 2010
Parkasho Devi and others .... Petitioners
Vs.
Khajoor Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Rajeev Dev Sharma, Advocate
for the petitioners.
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L. N. MITTAL, J. (Oral) :
This is revision petition by some of the legal representatives of of defendant no.1 (since deceased), challenging order dated 27.09.2010 (Annexure P-5) passed by learned Civil Judge (Junior Division), Pathankot, thereby dismissing application Annexure P-3 moved by the defendants for amendment of written statement.
By way of amendment, it was sought to plead that father of plaintiffs had executed gift deed, which was not reflected in the revenue record, but now, by fard badar no.5, shares have been corrected in the revenue record and according to it, plaintiff no.2 has no share in 03 kanals 08 marlas land, which is prime land out of suit land, and on the other hand, C. R. No. 6778 of 2010 2 petitioners have different shares in the suit land. Some consequential pleas are also sought to be taken.
I have heard learned counsel for the petitioners and perused the case file.
Learned counsel for the petitioners contended that fard badar making correction in the revenue record was recorded on 05.04.2010 and immediately thereafter, defendants moved application dated 11.06.2010 for amendment of written statement and therefore, the amendment should have been allowed. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others reported as 2007 (2) R. C. R. (Civil) 830 and also on a judgment of this Court namely Sagar Singh Slathia vs. Surinder Pal Singh reported as 2009 (3) R. C. R. (Civil) 37.
I have carefully considered the aforesaid contention, but find no merit therein.
The suit was filed on 03.02.2003 by respondents no.1 and 2. Written statement was filed by the defendants in the year 2003. Not even a remote reference was made to alleged gift deed in the original written statement. Learned counsel for the petitioners states that the gift deed is of the year 1970 and it was in the knowledge of defendants. There is no explanation why in these circumstances, the gift deed was not pleaded in the C. R. No. 6778 of 2010 3 original written statement. Consequently, amendment application moved in the year 2010 could not have been allowed. It is correct that mere delay may not be sufficient to dismiss application for amendment of written statement. However, in the instant case, the defendants are seeking amendment on the basis of fard badar. However, fard badar is not the basis of rights of the parties. On the other hand, the alleged gift deed could be the basis of the rights of the parties and the said gift deed is said to be of the year 1970 and was already in the knowledge of the defendants, when they filed their written statement in the year 2003. No right can be claimed on the basis of mutation or fard badar because basis of right is the alleged gift deed and not the mutation or fard badar.
The amendment application was moved in the trial court after defendants had availed of many opportunities for their evidence and on the date amendment application was moved, evidence of the defendants was closed by order of the trial court. In the original written statement, defendants have admitted that plaintiff no.2 has share to the extent of 15 marlas in the suit land. However, by way of amendment, defendants want to withdraw the said admission and want to plead that plaintiff no.2 has no share in the suit land. By amendment, defendants cannot be permitted to withdraw the admission made in the original written statement, although admission can be explained, but not withdrawn. In the instant case, the defendants want to withdraw the aforesaid admission by way of amendment C. R. No. 6778 of 2010 4 of written statement, but this cannot be permitted.
In addition to the aforesaid, in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short - CPC), amendment cannot be allowed because amendment was sought at the fag end of the trial of the suit. According to the aforesaid provision, the amendment cannot be allowed after commencement of trial, unless it is shown that the party seeking amendment could not have raised the matter earlier in spite of due diligence. In the instant case, however, the defendants could certainly raise the matter in the original written statement as the alleged gift deed in question was in their knowledge. Judgments in the cases of Usha Balashaheb Swami (supra) and Sagar Singh Slathia (supra) are not applicable because in those cases, suits had been instituted before the aforesaid provision was introduced by amendment in CPC and therefore, the said amended proviso was not applicable in those cases.
For the reasons aforesaid, it is manifest that the proposed amendment of written statement, as sought by the defendants, could not be allowed and amendment application has rightly been dismissed by the trial court. There is no illegality or jurisdictional error in the impugned order of the trial court. The revision petition is without any merit and is accordingly dismissed in limine.
October 14, 2010 ( L. N. MITTAL ) monika JUDGE