Punjab-Haryana High Court
Date Of Decision vs Prem Jit Kaur on 8 December, 2011
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
C.R.No.5134 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5134 of 2011
Date of decision:
8.12.2011
Dalip Masih
...
Petitioner
Versus
Prem Jit Kaur
...
Respondent
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL
Present: Mr. M.S.Sachdev, Advocate for the petitioner.
Mr. S.K.Gautam, Advocate for the respondent.
Ajay Kumar Mittal,J.
1. Application of the defendant-petitioner for amendment of the written statement filed before the lower appellate court having been declined on 1.6.2011, has given a cause to him to approach this Court through the present revision petition invoking jurisdiction of this Court under Article 227 of the Constitution.
2. Brief facts may be noticed. The parties in litigation entered into an agreement to sell dated 17.9.2003 and specific performance of which was sought by filing suit on 13.5.2004. The plea of the defendant-petitioner in the written statement before the trial court was that the plaintiff was a money lender and there was no valid agreement of sale between the parties. The trial court decreed C.R.No.5134 of 2011 2 the suit on 10.11.2009. The defendant-petitioner filed appeal challenging the judgment and decree dated 10.11.2009. In the said appeal, an application for amendment was filed on 2.5.2011 which has been rejected by the lower appellate court vide order impugned herein.
3. Learned counsel for the petitioner submitted that the following amendment was required to be incorporated in the written statement.:-
"7. That without prejudice to the other facts mentioned herein before or herein after, the defendant raised loan from M/S ICICI Home Finance Company Limited for the construction of the house in question which was disbursed on March 1, 2004 and thereafter he raised construction in the property in question and the plaintiff never raised any little finger towards the same. Later on, M/s ICICI Home Finance Company Limited claimed to have transferred their right to M/s Kotak Mahindra Bank Limited and accordingly M/s Kotak Mahindra Bank Limited, vide their notice dated 5.6.2008 raised a demand of sum of Rs.8,53,705/- which was payable at that time and the same has now been increased further. Thus, the plaintiff is bound to pay the said amount to the bank in case, she succeeds and as such this suit is liable to be dismissed with special and compensatory costs.
8. That there is a mis-joinder and non-joinder of necessary parties in as much as M/s Kotak Mahindra Bank Limited is also a necessary party and as such the suit is liable to be dismissed on that score also because the superstructure over the property was raised with the money taken from M/S ICICI Home Finance Company Limited, who claimed to have transferred the claim to M/s Kotak Mahindra Bank Limited."C.R.No.5134 of 2011 3
4. He submitted that the Apex Court in North Eastern Railway Administration v.Bhagwan Das (D) by LRs, 2008(3) RCR (Civil) 165 and this Court in Arya Mitter and another v. Harbans Lal and another, 2010(Suppl.) Civil Court Cases 862 had held that amendment at appellate stage was also permissible. In the present case, in order to do justice between the parties, it was essential for appellate court to allow amendment of the written statement.
5. Opposing the prayer, learned counsel for the plaintiff- respondent submitted that the fact which is now sought to be raised by way of amendment was within the knowledge when the suit was filed in the trial court and the application was only a delaying tactic to prolong the disposal of the appeal. He relied upon judgment of the Apex court in Jaswant Kaur and another v. Subhash Paliwal and others, 2010(1) Civil Court Cases 496 in support of his submission. He further urged that the suit remained pending in the trial court for over five years and no endeavour was made to amend the written statement. Further, the amendment now sought to be incorporated is not essential for just decision of the case. In such circumstances, no other inference can be drawn except to conclude that the amendment application was only to delay the disposal of the appeal.
6. After giving thoughtful consideration to the respective submissions of learned counsel for the parties, I do not find any merit in the revision petition. The lower appellate court while declining the application for amendment, in paras 5 to 9 had noticed as under:-
"5. From the record, I find that this application has just been filed to delay the proceedings of the appeal and the appellant-applicant's purpose is only to reopen the case by way of amendment and to get the judgment and C.R.No.5134 of 2011 4 decree set aside and to start de-novo trial before the lower court etc. Further I find that all these facts are not necessary to be pleaded in the written statement. Otherwise also there is delay in pleading all these facts. The appeal has been filed on 21.12.2009 and this application has now been filed after 1.1/2 year of the filing of the appeal.
6. The learned counsel for the appellant-applicant cited North Eastern Railway v. Bhagwan Das (D) by LRs (2008) 3 RCR (Civil) 165 (SC). I have gone through this citation. This citation having distinguished facts will not apply in the present case.
7. On the other hand, the learned counsel for the respondent has cited Jaswant Kaur and another v.
Subash Paliwal and others, 2010(1) Civil Court Cases 496 (SC) in which it is held that amendment of written statement was sought at the appellate stage and the facts sought to be introduced were within the knowledge at the stage of pendency of the suit in the trial court. It is also held that a new story by way of defence sought to be introduced in order to prolong the disposal of appeal. I have gone through this citation. This citation will fully apply to the facts of the present case.
8. The learned counsel for the respondent has further cited Rajinder Kishore and others v. Kesar Dass and others, AIR 1986 Punjab and Haryana 81, in which it is held that if the amendment is sought at the appellate stage, a very strong case is to be made out why it is not sought in the trial court and the party should give cogent reasons for delay. I have gone through this citation. This citation is fully applicable to the present case." C.R.No.5134 of 2011 5
7. Further, the Apex Court in Jaswant Kaur's case (supra) has in para 18 observed as under:-
"18. It is no doubt true, as has been submitted by Ms.Shobha, that the power to allow amendment of pleadings is very wide and is to be applied liberally. However, in the context of the instant case, such an argument would not be available to the petitioners since, as found by the Courts below, they were fully aware of the Will in question, but had not even mentioned the same in their written statement and had only made an application under Order XI Rules 12 and 14 CPC for a direction upon the respondents to produce the same, which prayer had been rejected. It is only at the first appellate stage and that too about two years after the appeal had been filed, that the two applications were made under Order XLI Rule 27 and Order VI Rule 17 CPC for amendment of the plaint and for bringing on record the certified copy of the Will. By virtue of the said two applications, the petitioners attempted to induct a new story by way of defence in order to prolong the disposal of the appeal."
8. Learned counsel for the defendant-petitioner was unable to give any satisfactory reply as to why such a fact could not be incorporated in the written statement filed in the trial court. No plausible explanation has been tendered for not filing such an application alongwith the filing of the appeal before the lower appellate court on 21.12.2009. The present application has been filed after a period of more than one and a half years of the filing of the appeal. Thus, it cannot be said that the application is bonafide. Further, no justified relevancy of the amendment sought to be C.R.No.5134 of 2011 6 incorporated had been explained with the controversy relating to specific performance of agreement to sell dated 17.9.2003.
9. The principles enunciated in the judgments relied upon by the learned counsel for the petitioner are well-recognized, the same being based on individual fact situation involved therein, do not advance the case of the petitioner.
10. Finding no merit in the revision petition, the same is dismissed.
December 8, 2011 (Ajay Kumar Mittal)
'gs' Judge