Delhi High Court
Raj Devi vs Mohd. Salim Siddique And Ors. on 19 November, 1991
Equivalent citations: 45(1991)DLT653, 1991(21)DRJ317
JUDGMENT P.N. Nag, J.
(1) This revision petition is directed against the order dated 10th December, 1990 passed by Shri B.S. Chaudhary, Additional District Judge, Delhi whereby he has disallowed the application of the petitioner-defendant No. I under Order 6 Rule 17 of the- Code of Civil Procedure for amendment of the written statement.
(2) The case set up by the plaintiffs respondents in the suit is that he has filed a suit for specific performance on the basis of an agreement to sell and possession of house No A-1/5, East Krishna Nagar, West Shahdara, Delhi. According to him, it was agreed to be sold for a consideration of Rs. 90,000.00 already paid to the petitioner defendant No. I by the plaintiffs- respondents. In the written statement the stand taken by the petitioner-defendant No. I, in substance, was that she was in possession of the suit property throughout as owner.and that she was residing in the suit property as owner. In the amendment application, the petitioner-defendant No. I wants, in substance, to add additional pleas in as much as that although she claims to be the owner and in possession of the property in dispute but as yet she has not obtained the sale deed in her favor and she had obtained only power of attorney and agreement to sell dated 17 8.1979 from one Shri Devi Dayal Bhasin. It appears that Shri Devi Dayal Bhasin purported to have issued a power of attorney in favor of Shri Subhash Chander of the property in dispute and Shri Subhash Chander has again issued a power of attorney in favor of the present petitioner-defendant No. 1. The second plea which is sought for in the amendment application is that the plaintiffs- respondents have played fraud on her in getting such agreement to sell dated 17.8.1979 executed from her as she is an illiterate lady and could not know the contents of the documents so got thumb marked from her. Such agreement of sale is the result of such fraud and she has never executed the power of attorney in favor of the respondents-plaintiffs.
(3) After hearing the parties at some length, I am of the view that the amendments sought for by the petitioner-defendant No. I are necessary to determine the point in controversy and should have been allowed by the trial Court. Counsel for the respondents-plaintiffs, however, contended that such amendments, if allowed will take away the admission made by the petitioner. defendant No I in the written statement earlier that she is the owner and in possession of the property in dispute. In my view the amendment sought for cannot take away the admission made by the petitioner-defendant No. I as she only wants to incorporate that although she is the owner and in possession of the property in dispute but she has not got the sale deed executed and she has got in possession the property only on the basis of power of attorney and agreement to sell. Certainly the allegation of fraud sought to be added in the additional pleas also does not in any way change the complexion of the case.
(4) Learned Counsel for the respondents-plaintiffs further states that tho case is at the arguments stage before the trial Court and the amendment, if allowed, would reopen the whole case which would result unnecessarily delay in the final disposal of the matter and, therefore, the amendment sought for should be rejected. Counsel for the petitioner-defendant No. I states that he only wishes to produce the evidence of petitioner-defendant No. I and that tho respondent-plaintiffs can always produce evidence in rebuttal and tho trial will not take very long. In these circumstances, it would be expedient in the interest of justice .to allow the amendments sought for and the respondents- plaintiffs in my view, can be compensated by awarding costs. It is settled principle of law that amendment can be allowed at any stage of the proceedings, even at the appellate stage, if the other party can be compensated by costs.
(5) I, therefore, allow the revision and the amendments sought for by petitioner-defendant No. I subject of Rs. l,500.00 as costs. The payment of costs shall be condition precedent.
(6) The amended written statement shall be filed by the petitioner defendant No. I before the trial Court on the next date now fixed. An advance copy thereof shall be given to Counsel for the respondents- plaintiffs. Replication, if any, be filed within one week thereafter. Issues, if any be framed by the trial Court immediately thereafter. On the framing of issues, the trail Court will allow the evidence of the petitioner-defendant No. Ion the date fixed by the trial Court and thereafter within fifteen days, the respondent-plaintiff will produce the evidence in rebuttal. It may be made clear that petitioner-defendant No. I will be granted only one opportunity , make her statement in support of the new issues so framed. The trial of the case will be completed by the trial Court as far as possible, preferably within six months from today.