Punjab-Haryana High Court
Tej Kaur And Another vs Kulwant Singh Bains And Others on 26 July, 2013
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 7691 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 7691 of 2011
Date of decision : July 26, 2013
Tej Kaur and another
....Petitioners
versus
Kulwant Singh Bains and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Parminder Singh, Advocate, for the petitioners
Mr. Raman Mahajan, Advocate, for respondent no. 1
Mr. DS Jandiala, Advocate, for respondent no. 9
L.N. Mittal, J. (Oral)
Tej Kaur and Jagdeep Singh Bains have filed this revision petition under Article 227 of the Constitution of India impugning order dated 29.11.2011 Annexure P/1 passed by the trial court thereby dismissing application Annexure P/7 filed by the petitioners for amendment of their written statement Annexure P/3.
Suit has been filed by respondent no. 1-plaintiff Kulwant Singh Bains against General Public as defendant no. 1, Estate Office, UT Tiwana Dalbir Singh 2013.07.29 11:10 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 7691 of 2011 -2- Chandigarh as defendant no. 2 and Ajit Singh as proforma defendant no. 3. On notice to General Public, petitioners appeared in the suit and filed objections Annexure P/3 which have been treated as their written statement and they have been arrayed as defendants under defendant no. 1-General public. In their written statement, the petitioners have inter alia pleaded a Will dated 28.10.1999 allegedly executed in United Kingdom (UK) by Gurmit Singh Bains whose inheritance is in dispute. By amendment of their written statement, the petitioners also want to plead another registered Will dated 3.12.1985 allegedly executed by Gurmit Singh Bains at Phagwara in India. The petitioners alleged in their amendment application that they had filed application dated 28.7.2009 under section 151 of the Code of Civil Procedure (in short, CPC) for producing the Will dated 3.12.1985 on record along with Probate Order of Court of UK. It was alleged that Will dated 3.12.1985 is very relevant for deciding the suit and the same should be allowed to be pleaded by amendment.
The amendment application was opposed by respondent no. 1- plaintiff by filing reply Annexure P/8. It was alleged that amendment application has been moved after commencement of trial inasmuch as petitioners had availed of three opportunities for their evidence before filing the amendment application.
Learned trial court vide impugned order Annexure P/1 has Tiwana Dalbir Singh 2013.07.29 11:10 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 7691 of 2011 -3- dismissed the amendment application filed by the petitioners. Feeling aggrieved, the petitioners have filed the instant revision petition to assail the said order.
Reply on behalf of respondent no. 9 filed today in Court is taken on record subject to all just exceptions. Copy given to the opposite counsel.
I have heard counsel for the parties and perused the case file. Counsel for the petitioners contended that Will dated 3.12.1985 was not previously in the knowledge of the petitioners and therefore, the same should be allowed to be pleaded by amendment of written statement. It was also argued that law of amendment of pleadings is very liberal and amendment should be allowed at any stage of the proceedings to minimise the litigation. Reliance in support of these contentions has been placed on two judgments of Hon'ble Supreme Court in Rameshkumar Aggarwal versus Rajmala Exports Pvt. Ltd. & Ors., 2012(2) Civil Court Cases 293 (SC) and Abdul Rehman & Anr. Versus Mohd. Ruldu & Ors., 2012(4) Civil court Cases 584 (SC).
On the other hand, counsel for respondent no. 1-plaintiff contended that since application for amendment was moved after commencement of trial, the same has been rightly dismissed by the trial court in view of proviso to Order 6 Rule 17 of the CPC.
Tiwana Dalbir Singh 2013.07.29 11:10 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 7691 of 2011 -4-
I have carefully considered the matter. Contention on behalf of the petitioners that Will dated 3.12.1985 was not earlier in their knowledge cannot be accepted. No such plea has even been taken in the amendment application. Moreover, the said Will is in the possession of the petitioners themselves. Consequently, it cannot be said that the said Will was not in their knowledge. On the other hand, the petitioners themselves moved application under section 151 CPC on 28.7.2009 for producing the said Will on record. However, the amendment application Annexure P/7 is dated 22.10.2011. Issues in the case were framed on 18.7.2011. Consequently, two years before the framing of issues, the petitioners themselves had moved application for producing the said Will in the court. Thus, petitioners had knowledge of the said Will long before commencement of the trial.
It is undisputed that amendment application has been moved after commencement of trial because the same was moved after framing of issues and grant of three opportunities to the petitioners for their evidence. In view of proviso to Order 6 Rule 17 CPC, amendment of pleadings cannot be allowed after commencement of trial unless the party seeking amendment could not have raised the matter before commencement of trial inspite of exercise of due diligence. In the instant case, it cannot be said that inspite of exercise of due diligence, the petitioners could not have taken the Tiwana Dalbir Singh 2013.07.29 11:10 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 7691 of 2011 -5- proposed plea (sought to be raised by amendment of written statement) before commencement of trial. Consequently, in view of mandatory proviso to Order 6 Rule 17, proposed amendment of written statement has been rightly declined by the trial court.
Judgment in the case of Rameshkumar Agarwal (supra) is not applicable to the instant case because in that case, amendment was sought before commencement of trial. Judgment in the case of Abdul Rehman (supra) does not help the petitioners because even in the said judgment, it has been observed that proviso to Order 6 Rule 17 CPC to some extent curtails the absolute discretion to allow amendment at any stage and if application is filed after commencement of trial, it has to be shown that inspite of due diligence, it could not have been sought earlier. These observations in the aforesaid judgment negative the claim of the petitioners to seek amendment of written statement after commencement of trial because they have not shown that inspite of due diligence, they could not have sought the proposed amendment before commencement of trial.
For the reasons aforesaid, I find that amendment of written statement has been rightly declined by the trial court. Impugned order of the trial court does not suffer from any illegality, perversity or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision Tiwana Dalbir Singh 2013.07.29 11:10 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 7691 of 2011 -6- petition is meritless and is accordingly dismissed.
( L.N. Mittal )
July 26, 2013 Judge
'dalbir'
Tiwana Dalbir Singh
2013.07.29 11:10
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh