Punjab-Haryana High Court
Vinod Kumar And Anr vs Chiman Lal And Ors on 25 August, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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Civil Revision No.5605 of 2011 (O&M)
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Date of decision:25.8.2014
Vinod Kumar and another
.....Petitioners
v.
Chiman Lal and others
.....Respondents
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Coram: Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Puneet Sharma, Advocate for the petitioners.
Mr. Rajesh Sethi, Advocate for respondent No.1.
Mr. Rajesh Gupta, Advocate for respondents No.2, 3 and 5.
None for respondent No.4.
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Inderjit Singh, J.
Vinod Kumar etc.-petitioners have filed this civil revision petition against Chiman Lal etc.-respondents under Article 227 of the Constitution of India praying for setting aside the impugned order dated 7.4.2011 (Annexure-P.7) passed by the learned Additional Civil Judge (Senior Division), Fatehabad in case No.61-C titled as Chiman Lal v. Smt. Mahender Kaur and others, wherein the application under Order 6 Rule 17 CPC (Annexure-P.5) filed by the petitioners seeking amendment of the HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [2] written statement at the very initial stage has been wrongly dismissed.
It is stated in the petition that the said application was moved on realization by the petitioners/defendants No.5 and 6 that defendants No.1 to 4/respondents No.2 to 5 herein have colluded with the plaintiff/ respondent No.1 as defendants No.1 to 4 did not cross-examine the witnesses of the plaintiff, thereby necessitating the petitioners/defendants No.5 and 6 to file application under Order 6 Rule 17 C.P.C. seeking the amendment of the written statement.
In this case notice of motion was issued to the respondents. Learned counsel appeared for respondent No.1/plaintiff and contested this petition.
I have heard learned counsel for the parties and have gone through the record.
From the record, I find that Chiman Lal-plaintiff filed suit against Mahender Kaur, Rajender Singh, Amrik Singh, Rajo, Vinod Kumar and Suresh Kumar for possession by way of specific performance of agreement to sell dated 30.1.2008 executed by defendants No.1 to 4 in favour of the plaintiff by which the defendants No.1 to 4 agreed to sell to the plaintiff their land measuring 8 Kanals 9 Marlas. The application dated 8.3.2011 under Order 6 Rule 17 C.P.C. was moved by defendants No.5 and 6 stating that proposed amendment is necessary for the purpose of determining the real question in controversy between the parties and they want to amend paras 1 and 2 of the written statement. These contentions have been vehemently opposed and controverted by the HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [3] learned counsel for the plaintiff, who argued that at this stage there are no grounds to allow the application because the facts now sought to be impleaded were very much in the knowledge of the defendants when defendants No.1, 3 and 4 had filed written statement. The purpose of moving the application at this belated stage is nothing but to prolong the case unnecessarily. Even otherwise, the amendment now sought is not necessary for the purpose of determining the real question of controversy.
Learned Additional Civil Judge (Senior Division), Fatehabad vide order dated 7.4.2014 held that by way of proposed amendment, defendants No.5 and 6 want to take a new plea in paras No.1 and 2 of the written statement that the impugned agreement dated 30.1.2008 prepared by defendants No.1 to 4 in collusion with the plaintiff without any consideration in anti-date after the partition of the above mentioned 94 Kanals 9 Marlas on 21.1.2008. Defendants No.1 to 4 after the partition became dishonest and they have prepared the impugned agreement in collusion with the plaintiff in order to defeat the valuable rights of the defendants and as such the agreement is false, fictitious and bogus. Earlier in paras No.1 and 2, the applicants had merely stated that the plaintiff was bound to prove the averments of paras No.1 and 2 of the plaint. The applicants took the plea that they came to know about the agreement dated 30.1.2008 when defendants No.1 to 4 did not cross- examine the witnesses so produced by the plaintiff. This plea of the applicants was found not tenable by the learned Additional Civil Judge (Senior Division), Fatehabad. As per the findings, defendants No.1, 3 and HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [4] 4 had also admitted the genuineness of the said agreement. From the written statement, it cannot be held that defendants No.5 and 6 were not knowing this fact. Learned Additional Civil Judge (Senior Division), Fatehabad also held that the plaintiff has also examined two witnesses and the purpose of filing the application seems nothing but to prolong the proceedings unnecessarily.
From the record, I also find that this application has been filed firstly to prolong the proceedings. Secondly, all these facts were in the knowledge of the applicants/present petitioners when defendants No.1, 3 and 4 filed written statement. The applicants at that time only took the plea that the plaintiff was going to prove the averments of paras 1 and 2 of the plaint. Now they want to take a new plea to fill-up the lacuna also.
Learned counsel for the petitioners placed reliance on the judgment of the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006 (2) R.C.R. (Civil) 577, in which it is held that the Court should liberally allow all bona fide amendments necessary for determining the real question in controversy between the parties. I find that in the present case all these facts were in the knowledge of defendants No.5 and 6 and the plea of the applicants that they came to know only when defendants No.1 to 4 did not cross-examine the plaintiff's witnesses cannot be held as bona fide. Otherwise also, the plaintiff is to prove the agreement to sell by leading evidence as onus on this issue was on the plaintiff.
Learned counsel for the petitioners further placed reliance on HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [5] the judgment of the Hon'ble Supreme Court in Sampath Kumar v. Ayyakannu and another, 2002 (4) R.C.R. (Civil) 566. I have gone through the law laid down in this judgment. This judgment having distinguished facts will not apply in the present case as in that case amendment was sought to convert the suit for injunction into a suit for possession on the ground that possession has been taken illegally during pendency of the suit. The suit was pending since more than ten years. It was held that if the plaintiff is still entitled to file a fresh suit, that relief should be allowed to be claimed by way of amendment to curtail multiplicity of proceedings. It was held that in those circumstances the amendment should have been allowed.
Learned counsel for the petitioners also placed reliance on the judgment of this Court in Sagar Singh Slathia v. Surinder Pal Singh, 2009 (3) R.C.R. (Civil) 37. I have gone through the law laid down in this judgment. This judgment having distinguished facts will not apply in the present case.
On the other hand, learned counsel for respondent No.1 placed reliance on the judgment of the Hon'ble Supreme Court in Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others, AIR 2007 SC 806. In this judgment, it is held that amendment to the written statement after evidence of three witnesses was over and documentary evidence was tendered. Application of defendants to recast issues had also been dismissed. No grounds were raised in application to show that despite diligence matter could not be raised earlier. The facts HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [6] moreover were showing otherwise. Granting amendment at such stage would cause serious prejudice to plaintiff. Moreso, when the amendment seeks to introduce new and totally inconsistent case. In paras 52 and 57 of the judgment, the Hon'ble Supreme Court has held as under:-
"52. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents - original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.
57. The above averment, in our opinion, does not satisfy the HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [7] requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
I have gone through the law laid down in this judgment, which fully applies to the facts of the present case.
Learned counsel for respondent No.1 also placed reliance on the judgment of this Court in K.B. Sharma v. Shri Keerti Karan Dharni, 2010 (2) R.C.R. (Civil) 19, in which it is held that after the commencement of the trial, amendment of the pleadings cannot be allowed, until and unless, the party seeking the amendment establishes that despite due diligence, it could not raise the pleas sought to be incorporated by way of amendment. Where the defendant was already in the knowledge of such pleas at the time of filing the original written statement, the amendment cannot be allowed. I have gone through the law laid down in this judgment. This judgment fully applies to the facts of the present case.
Therefore, from the above discussion, I find that the order passed by the learned Additional Civil Judge (Senior Division), Fatehabad is correct and as per law which does not require interference from this Court and the same is upheld.
HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh C.R. No.5605 of 2011 (O&M) [8]
Finding no merit in the civil revision petition, the same is dismissed.
August 25, 2014. (Inderjit Singh) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes HARPAL SINGH PARMAR 2014.09.11 10:26 I attest to the accuracy and integrity of this document Chandigarh