Punjab-Haryana High Court
Jai Singh vs Smt. Sukhjit Kaur on 23 July, 2007
Equivalent citations: (2007)4PLR706
JUDGMENT Vinod K. Sharma, J.
1. This order shall dispose of C.R. No. 5933 of 2004 titled Jai Singh v. Smt. Sukhjit Kaur C.R. No. 4679 of 2005 titled Jai Singh v. Gurcharanjit Singh and C.R. No. 2005 titled Jai Singh v. Amrik Singh, as common questions of law and facts are involved in these petitions.
2. For facility, facts are being taken from C.R. No. 5933 of 2004.
3. These revision petitions have been filed against the order passed by the learned trial Court vide which application made by the petitioner-defendant for amendment of the written statement has been declined.
4. The plaintiff-respondent filed a suit for specific performance of an agreement to sell regarding agricultural land belonging to the defendant-petitioner. It was also prayed therein that the defendant-petitioner may be restrained from selling, alienating or encumbering the suit property. In the written statement the execution of the agreement was denied and it was claimed that the agreement is the outcome of misrepresentation. The present application was moved to amend the written statement so as to incorporate the particulars of fraud. It was also mentioned therein that the particulars of previous litigation were also required to be mentioned in the written statement. It was also claimed that the present suit for specific performance was filed after the defendant has filed a criminal complaint against the plaintiff. The application was opposed on the ground that ho plea of fraud was taken with regard to the agreement of sale in question and therefore, it was claimed that the said plea could not be allowed to the raised now. It was also claimed that the proposed amendment was not necessary and the same cannot be allowed as per the amended Code of Civil Procedure (for short the Code) as no amendment of pleadings could be allowed after the commencement of trial.
5. Learned trial Court dismissed the application firstly on the ground that the plea of fraud was not available to the plaintiff as fraud and forgery are two different versions. Under the fraud the signatures are admitted whereas in the case of forgery the same are claimed to be forged one. The second ground on which the application was rejected was that after the amendment of Order 6 Rule 17 of the Code it was not open to the parties to amend the pleadings after the commencement of trial unless it is proved that in spite of the due diligence the amendment sought could riot be pleaded at the time of filing of the pleadings.
6. Mr. Bhoop Singh, learned Counsel appearing on behalf of the petitioner has challenged the order primarily on the ground that the learned court below was in error in dismissing the application by invoking the amended provisions of Order 6 Rule 17 of the Code. The contention of the learned Counsel for the petitioner was that the said pleadings were filed prior to the amendment of Order 6 Rule 17 of the Code, therefore, the learned trial Court was in error in dismissing the application on the said ground. In support of this contention learned Counsel for the petitioner placed reliance on the judgment of this Court in the case of Dr. Bimla Bhagat v. Dr. Suresh Bhagat 2006 (4) R.C.R. (Civil) 413 wherein, this Court was pleased to hold as under:
11. I have considered the arguments raised by the learned Counsel for the parties and find that the amended provisions of Order 6 Rule 17 of the C.P.C. would not apply to the present case as the original pleadings were filed by the petitioner on 17.11.2001 i.e. before the amendment of Order 6 Rule 17 of the C.P.C. The amended written statement was filed on 21.3.2003 in view of the amended petition filed by the respondent-husband.
12. As regards the question of delay, the learned Court below was not right in rejecting the application on that ground as it could be compensated by payment of costs.
13. It is pertinent to note that in the present case the amendment sought was of written statement and therefore there was no question of change of nature of case as observed by the learned courts below as in the case of written statement it was open to the petitioner to take even a contradictory stand or take an elaborate additional plea as held by the Hon'ble Supreme Court in Pal Singh's case (supra). It may further be noticed that it was clearly mentioned in the application moved under Order 6 Rule 17 of the C.P.C. that the facts sought to be pleaded by way of amendment of written, statement came to be knowledge of the petitioner after filing of the written statement and, therefore, there was no ground to reject the same. Regarding delay in moving the application, the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and Ors. (supra) has been pleased to lay down that it is mandatory for the Court to allow all amendments, which are necessary for the purpose of determining the real question of controversy between the parties. It would be seen that the amendment sought is of the nature which is necessary for the determination of real question of controverse between the parties.
7. Learned Counsel for the petitioner placed reliance on the judgment of Calcutta High Court in the case of Nandram Agarwalla v. State of West Bengal to contend that an element of fraud is pre-requisite to commit forgery unless it is proved that false document was made to commit fraud or that fraud may be committed the forgery cannot be proved. He placed reliance on para No. 6 of the said judgment, which reads as under:
6. That appears to me to be the pivot of the whole case was and yet that is exactly where the evidence in the prosecution amounts to nil. In the report of Sri Nani Gopal Das Gupta which he submitted to the Income-lax Commissioner and which the Income-tax Commissioner sent to the police it is clearly stated that copies of all these returns were in the office and that by comparison with them the mischief done could easily be ascertained. Curiously enough, Shri Das Gupta is completely silent in his evidence about these copies. No question appears to have been put to him by the prosecution about these nor were any copies filed in Court. If these copies really existed they could have been filed to prove the contents of the original returns. The report of Sri Das Gupta does not seem to make it quite clear whether before submitting his report to the Income-tax Commissioner 4 days after he had discovered the fraud he had actually satisfied himself that these copies were readily there in the office and that these copies showed whether the substituted documents differed from the originals. The only item of evidence therefore, which according to Shri Das Gupta could have thrown some light on the nature of the contents of the original documents is not forthcoming and the presumption must go against the prosecution. Whether that presumption goes against the prosecution or not, the fact remains that there is a complete absence of evidence to show that the contents of the original documents were and in view of that absence of evidence it is not possible to find out whether in fact there was really any substantial difference between the contents of the original documents and the substituted documents or not. If, as a matter of fact, there was no difference between the two sets of returns, the mere filing of two antedated returns would not lead to an inference of fraud because it is just possible, although Sri Das Gupta at once says that the order sheet does not show any order calling upon the assessee to file duplicates of returns, that duplicates, in fact were filed for some reason or other which is not apparent on the face of the record. Unless there is an element of fraud, the making of a false document, if the signing of Exhibits 3 and 4 by Nandaram Aggarwalla amounts to the making of false documents, would not amount to a forgery because one of the intents contemplated by Section 463 I.P.C. is that the false documents must be made with intent to commit fraud or that fraud may be committed. Consequently, even if Nandaram Aggarwalla by signing the documents in question made false documents this making of false documents would not amount to forgery, there being no intent to commit fraud and it being nobody's case that any of the other elements contemplated by Section 463 I.P.C. was present in this case.
Though the said judgment is based on interpretation of Section 463 and 464 IPC but the same would be applicable as the defence of the petitioner is that the agreement sought to be relied upon by the plaintiff-respondent was the outcome of forgery and fraud.
8. Mr. A.K. Kalsy, learned Counsel appearing on behalf of the respondent, however, supported the order passed by the learned trial Court on the contention that the application of the petitioner was not dismissed in view of the amended provisions of Order 6 Rule 17 of the Code but also on merit. The contention of the learned Counsel for the respondent therefore, was that by way of amendment the petitioner is seeking to resile from the admission made. He further contended that earlier stand of the petitioner was that he had not signed the agreement whereas now the allegations of fraud are being pleaded which are totally inconsistent. The contention of the learned Counsel for the respondent, therefore, was that the amendment sought could not be allowed and therefore, was rightly rejected. In support of this contention, learned Counsel for the respondent placed reliance on the judgment of Hon'ble Himachal Pradesh High Court in the case of Mathia v. Prem Lal 1993 (2) R.R.R. 483 (H.P.). Learned Counsel for the respondent, thereafter placed reliance on the judgment of Hon'ble Supreme Court in Shrimoni Gurdwara Committee v. Jaswant Singh and a judgment of this Court in Davinder Kumar Sharma v. Darshan Singh Mann (2000-3) 126 P.L.R. 824 : 2001 (1) R.C.R. (Civil) 240 (P & H) to contend that mutually destructive pleadings could not be raised in the written statement at the belated stage. The contention of the learned Counsel for the respondent was thereafter that earlier plea and now amendment sought were mutually destructive.
9. After hearing the learned Counsel for the respondent I find no force in this contention. By way of amendment the petitioner has not sought to withdraw any admission nor could the pleadings said to be mutually destructive. The definition of fraud would itself negate the plea raised by the learned Counsel for the respondent.
Fraud defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent or to induce him to enter into the contract: (1) the suggestion, as a fact, if mat which is not true, by one who does not believe it to be true, (2) the active concealment of a fact by one having knowledge or belief of the fact: (3) a promise made without any intention of performing it; (4) any other act fitted to or deceive; (5) Any such act or omission as the law specially declares to be fraudulent.
Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is in itself equivalent to speech.
10. Learned Counsel for the respondent thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. to content that amendment introducing entirely different new case and seeking to displace the plaintiff completely from admissions made by defendants in written statement cannot be allowed. This contention of the learned Counsel for the respondent is also misconceived as in the present case the petitioner has not withdrawn any averment made in the written statement and the amendment was sought to elaborate the allegations of fraud which was in built in the forgery.
11. Reliance was also placed by the learned Counsel for the respondent on the judgment of Hon'ble Supreme Court in the case of Bijendra Nath Srivastava (Dead) through LRs. v. Mayank Srivastava to contend that new objection cannot be introduced while challenging award under Section 30 of the Arbitration Act. However, the said judgment is not even remotely connected with the matter in issues. Reliance of the learned Counsel for the respondent of the Judgment of this Court in the case of Sukhdev Singh v. Bal Krishan and Inder Pal Singh v. Bankey Bihari is also misconceived as these judgments are dealing with the pleadings filed after the amendment of Order 6 Rule 17of the Code whereas in the present case amended provisions are not applicable.
12. After having heard the learned Counsel for the parties I find force in the arguments raised by the learned Counsel for the petitioner. Learned trial Court was in error in rejecting the application by invoking the provisions of amended provisions of Order 6 Rule 17 of the Code though the pleadings in the present case were filed prior to the amendment and therefore, the order on this count cannot be sustained. Other reasons for rejection of the amendment application also cannot be sustained as the plea sought to be raised for elaborating the factum of fraud cannot be said to be inconsistent or contrary to the stand earlier taken. By way of amendment the petitioner has sought to elaborate the allegations of fraud and therefore, learned trial Court was not correct tin dismissing the application.
13. Consequently, all the three revision petitions are allowed, the impugned orders are set aside and the applications move by the petitioner for the amendment of the written statement are allowed.