Punjab-Haryana High Court
Ranjit Kaur vs Ajaib Singh on 16 March, 1984
Equivalent citations: AIR1984P&H292, AIR 1984 PUNJAB AND HARYANA 292, (1984) 1 LANDLR 423, 1984 REVLR 104, 1984 PUNJ LJ 335, (1984) 86 PUN LR 255, (1984) 86 PUN LR 608, (1984) 2 LANDLR 384, 1984 REVLR 348, (1984) ILR 2 P&H 272
JUDGMENT
1. This appeal filed on behalf of the plaintiff is directed against the order of the Additional District Judge, Patiala, dated November 14, 1983, whereby the amendment of the written statement was allowed Anil on that account, the judgment and decree of the trial Court were set aside and the case was remanded for fresh decision.
2. The plaintiff-appellant filed the suit for the specific performance of the agreement to sell dated June 5, 1978. The said suit was decreed by the trial Court on February,F, 1983.. In the appeal filed on behalf of the defendant, the also moved an application under Order VI Rule Y7 of the Civil P. C., for amendment of the written statement, ' By virtue of the proposed:amendment, the defendant wanted to fake the plea that he was a member of-the coparcenary and joint Hindu family constituted of him and his sons and, therefore, no 'decree for specific performance of the agreement could be passed against him, That application' was contested on' behalf of the plaintiff. However ·, the lower appellate Court a lowed the Said application on payment of' costs. According to 'the lower appellate ' Court, the proposed amendment:, as only an additional, approach 'to the defence of the defendant, i. e., the agreement relied upon by the' plaintiff was ' not executable and that the amendment of the pleadings could be allowed at any stage and, therefore, on that ground, it allowed the amendment of the written statement: Dissatisfied with the same, the plaintiff has filed this appeal in this Court.
3. The learned counsel, for the appellant. contended that the defendant had taken all possible pleas. in his.written statement inasmuch as he even denied the execution of the agreement. and also pleaded that it.was the result of fraud and misrepresentation: The learned court further argued that when. the defendant failed to. substantiate, his.pleas in. the trial Court, he moved the application for amendment of the written statement, in appeal, with a mala fide intention to re-open.the whole matter again.. On ; the other hand, the learned. counsel. for the defendant-respondent concluded that the amendment could be allowed of. any stage and, therefore, there was nothing wrong if the amendment was allowed by the lower. appellate Court: According to the learned counsel, the plea,: if allowed, will non-suit..the plaintiff.
4. After hearing the learned counsel. for the parties, I am of the considered opinion that no amendment sought for by the defendant could be allowed by the lower appellate Court.. No one is entitled to seek amendment of. the pleadings as a matter of right; particularly in appeal. The argument that are amendment could be allowed. at any, stage and that the prayer to that effect could not be declined on the ground that the application made in that behalf was a delayed true, does not.mean that the parties to the proceedings. are entitled to seek amendment of the pleadings. at any stage as a matter of right.. It only. means that if the Court finds that the proposed amendment is; necessary for the determination of the controversy between the parties, the amendment may be allowed even at a stage. 'Here again the jurisdiction of the appellate Court is further limited because after the passing of the decree by the trial Court, the right of the parties.into being and then a very strong case is to be made out. why the' pleas sought to be taken by way of amendment could not be taken earlier. In that situation, the delay in making the application in this regard, has all to be explained to the satisfaction of the Court. It is at that stage, if the Court is satisfied, that the Court may allow the amendment in a given case. As regards the facts of the present case, the conduct of the defendant speaks for itself. All the possible pleas were taken by him in the written statement before the trial Court.' The plea now sought to be taken by way of amendment in the written statement was very much available to him at the trial stage, There is absolutely no explanation why the plea was not taken earlier in the trial Court. The approach of the lower appellate Court in this behalf is wholly erroneous; particularly when it was observed that the proposed amendment could not be defeated simply because it had been sought at the appellate stage. As observed earlier, the facts of the present case did not warrant that the defendant should have been allowed to take the plea by the proposed amendment of the written statement in appeal. prima facie, the application for amendment of the written statement seems to have been actuated by mala fide intentions.
5. As a result of the above discussion, this appeal succeeds and is allowed. The order allowing the amendment of the written statement passed by the lower appellate Court is. set aside and the case is remanded. to it for decision on merits in accordance with law: The parties have been directed to appear in the lower appellate Court on April 21, 1984.
6. Appeal allowed.