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Punjab-Haryana High Court

Mukesh Kumar vs Sushil Mittal And Others on 31 July, 2012

Author: L. N. Mittal

Bench: L. N. Mittal

                        C. R. No. 6670 of 2011                        1




IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.


                        Case No. : C. R. No. 6670 of 2011
                        Date of Decision : July 31, 2012



            Mukesh Kumar                         ....   Petitioner
                                Vs.
            Sushil Mittal and others             ....   Respondents


CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

                        *   *   *

Present :   Mr. Bhupender Ghai, Advocate
            for the petitioner.

            Mr. Raman Mahajan, Advocate
            for respondents no.1 to 3.

                        *   *   *

L. N. MITTAL, J. (Oral) :

Defendant no. 1 Mukesh Kumar has filed this revision petition under Article 227 of the Constitution of India to challenge order dated 01.10.2011 (Annexure P-3), passed by learned Civil Judge (Junior Division), Chandigarh thereby dismissing application (Annexure P-1) moved by defendant no.1-petitioner for amendment of his written statement (Annexure P-6).

Respondents no.1 to 3/plaintiffs have filed suit vide plaint C. R. No. 6670 of 2011 2 (Annexure P-5) against defendant no.1-petitioner and respondents no.4 to 6 as defendants no.2 to 4. In paragraphs 2 and 3 of the plaint, plaintiffs made averments regarding ownership and possession and tenancy of parts of the disputed property SCF No.88, Sector 26, Grain Market, Chandigarh. Sale deed of 1/8th share thereof in favour of defendant no.1 by defendants no.2 to 4 through their alleged attorney Santosh Kumar (father of defendant no.1) has been challenged in the suit.

Defendant no.1, in corresponding paragraphs no.2 and 3 of his written statement (Annexure P-6), admitted paragraphs 2 and 3 of the plaint as correct.

Defendant no.1 moved application (Annexure P-1) for amendment of written statement alleging that on 28.08.2011, on surfing of internet, defendant no.1 came to know of certain facts about ownership of certain property and then verified the same on inspection of record of Estate Officer. Accordingly, defendant no.1, by amendment, sought to withdraw the aforesaid admissions made in paragraphs 2 and 3 of the written statement on merits and wanted to raise several new preliminary objections and new facts.

Plaintiffs, by filing reply (Annexure P-2), controverted the averments made in the amendment application and raised many objections.

Learned trial court, vide impugned order (Annexure P-3), dismissed the application of defendant no.1 to amend his written statement. C. R. No. 6670 of 2011 3 Feeling aggrieved, defendant no.1 has filed this revision petition.

I have heard counsel for the parties and perused the case file. Learned counsel for the petitioner, relying on judgment of Hon'ble Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy & Sons & Others reported as 2009 (6) ALL MR 986, contended that law of amendment of written statement is more liberal than amendment of plaint and ordinarily, amendment of written statement should be allowed, and therefore, in the instant case also, amendment of written statement be allowed. It was also submitted that for resultant delay in the decision of the suit, plaintiffs may be compensated with costs. It was also contended, relying on judgment of Hon'ble Supreme Court in the case of Sushil Kumar Jain vs. Manoj Kumar and another reported as 2009 (8) JT 392, that even admission made in the written statement can be elaborated and clarified by way of amendment.

On the other hand, counsel for respondents no.1 to 3/plaintiffs contended that amendment of written statement has been rightly declined by the trial court because the amendment application was moved after commencement of trial, and therefore, the amendment could not be allowed in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short - CPC). It was also contended that by amendment, admissions already made in the original written statement cannot be allowed to be withdrawn.

I have carefully considered the rival contentions.

Undisputedly, application by defendant no.1-petitioner for amendment of written statement was moved after commencement of trial. Consequently, in view of proviso to Order 6 Rule 17 CPC, the said amendment could not be allowed because it cannot be said that defendant no.1 could not have raised the matter before commencement of trial in spite of due diligence. Judgment in the case of Revajeetu Builders and Developers (supra) has no applicability to the facts of the instant case because in that case, the suit had been instituted prior to amendment of Order 6 Rule 17 CPC, which, as it now exits, forbids amendment of pleadings after commencement of trial. However, there was no such prohibition when the suit in the case of Revajeetu Builders and Developers (supra) was instituted, and therefore, this judgment has no applicability to the instant case. In the said judgment, Order 6 Rule 17 CPC, as it now exists, was not interpreted.

On second count also, the petitioner has to fail because he cannot be permitted to withdraw the admissions, already made in the original written statement, by amendment thereof. Petitioner has made material admissions in the original written statement by admitting paragraph nos.2 and 3 of the plaint. The same cannot be allowed to be withdrawn by way of amendment because it would cause great prejudice to the plaintiffs. Judgment in the case of Sushil Kumar Jain (supra) does not help the petitioner because in that case, it was not laid down that admission made in C. R. No. 6670 of 2011 5 the written statement can be allowed to be withdrawn by amendment of written statement. On the contrary, it has simply been held in the said judgment that admission made in the written statement can be allowed to be elaborated or clarified by way of amendment. In the instant case, defendant no.1, by amendment, wants to completely withdraw the admissions made in the original written statement and wants to take a complete somersault, which is not permissible by amendment.

For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial court does not suffer from any infirmity, much less perversity or illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Accordingly, the revision petition is dismissed.

July 31, 2012                                      ( L. N. MITTAL )
monika                                                   JUDGE