Punjab-Haryana High Court
Mohar Pal vs Smt. Sunehra And Ors. on 28 February, 2002
Equivalent citations: 2002 A I H C 3766, (2002) 2 HINDULR 232, (2002) 3 LANDLR 463, (2002) 2 PUN LR 819, (2002) 2 RECCIVR 767, (2002) 3 ICC 747, (2002) 4 CIVLJ 786
JUDGMENT M.M. Kumar, J.
1. This revision petition is directed against the order dated 3.3.2001 passed by the Civil Judge (Junior Division), Faridabad dismissing the application of the defendant-petitioner seeking amendment of its written statement by adding para 6(A). The Civil Judge while dismissing the application has recorded the following reason:
"After hearing both the counsel and perusing the case file the considered opinion of mine is that no doubt in respect of law of amendment of court should have a liberal approach and howsoever negligent omission shall be taken in consideration as he has already been pressed upon by counsel for the plaintiff but at the same time it is also the settled law that among all, one of the purposes and objects of allowing amendments of the plaint is to avoid multiplicity of cases and, therefore, the amendment should be allowed in such a case where refusal of same would have been to drive the plaintiff to file a fresh suit which is not the situation of the present case. Further the Court has discretion to allow an amendment of course the discretion has to be used in a judicial manner and the considerations while acting judicially which normally weigh with the court are whether the amendment can be allowed without working injustice to the other side. I draw my support for this contention from (1973)75 P.L.R. 323 and also from A.I.R. 1967 Patna 386. Further all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Secondly, raising new pleas in lieu thereof setting up a shield to the parties' claim cannot be allowed by way of amendment. Thus the proposed amendment is not a mere change in the working of the plaintiff for the introduction of fresh details but is the one which pretends to shield the plaintiffs claim because in case the appeal against the decree in favour of deft. No. l is allowed then instead of giving relief of the plaintiff the present amendment appears to be the tool to be used to nullify the relief given to the plaintiff at the time if the same appeal is allowed. Amendment in the present case is of a different nature and though does not amount to alter the nature of the suit but still it will definitely cause injustice to the respondent" at the time of discussing the merits of the suit and hence the application cannot be allowed to insert the protective shielf to his claim by way of amendment. Moreover, though the plea of limitation is a immaterial for seeking an amendment as same can be allowed at that stage of proceeding even at the time of passing of the judgment but still lapse of time should be considered while deciding the matter judiciously and in the present case at it is apparent that the amendment as proposed today could initially be inserted in the pleadings at the time of application of LR's long back 1995 itself. The same has not been inserted till date and a period of almost 6 years, no doubt creates a lacuna as to consider the negligence on the part of the defendant or his counsel to insert such a document which is quite significant to prove their case. Thus, though howsoever negligent omission may be allowed but the same cannot be allowed, after howsoever many year I draw my support from 1997(32) R.C.R. Civil (.....) which says amendment if any has to be made within limitation."
2. Brief facts which lead to the filing of the present revision petition may first be noticed. Bhulli had two sons Mohar Pal, defendant-petitioner and Chandan Singh. Chandan Singh died about 20 years ago and Smt. Sunehra, plaintiff-respondent No. 1 is his widow and Murti Devi, plaintiff-respondent No. 2 is his daughter. On 10.8.1993, Bhulli allegedly suffered a decree in favour of Mohar Pal, defendant-petitioner on the basis of a family settlement. The afore-mentioned decree has been challenged by the widow and daughter of Chandan Singh, plaintiff-respondent Nos.I and 2 in Civil Suit No. 432 filed on 10.6.1994 on the ground that the decree was obtained by practising fraud on the Court and also on the ground that the land was ancestral in character, therefore, Bhulli could not have suffered a consent decree. On that count, the decree is sought to be set aside, In the afore-mentioned suit, Bhulli was impleaded as defendant. In his written statement Bhulli took the stand that the averment made in the suit that the defendant-petitioner Mohar Pal played a fraud upon him was correct. According to the written statement Bhulli has stated to defendant-petitioner that he would give half share in the total land to the defendant-petitioner and the other half share would be given to the plaintiff-respondent. Therefore, Bhulli accepted the allegation that the decree has been obtained by fraud as they never agreed to give away the whole suit land to the defendant-petitioner. He has also supported the stand of the plaintiff-respondent that the whole of the suit land was ancestral property. He denied that both his sons had by birth acquired any interest in the suit land. The possession to the plaintiff-respondent to the extent of half share of the land. The defendant-petitioner has filed a separate written statement contesting the suit on all counts.
3. On 29.10.1995, Bhulli died and on 13.1.2002 defendant-petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for brevity 'the Code)' for amendment of the written statement by inserting paragraph 6 A which reads as under:
"That Shri Bhulli expired in the year 1995 and has left behind a registered Will dated 4.12.1992, executed by Sh. Bhuili in favour of the defendant No. 1. That the plaintiffs have no right, title and interest in the suit land and the defendant No. l is entitled to the suit land under the terms of the registered Will dated 4.12.1992." The principal ground of seeking the insertion of the afore-mentioned amendment is that although the Will has been handed over to the learned counsel for the defendant but on account of inadvertence the same could not be referred to in the pleadings. It is further claimed that the amendment does not add any cause of action and will not change the nature of the suit.
4. The amendment has been contested by the plaintiff-respondents by raising the plea that after the death of Bhuili, the plaintiff-respondent filed an application for bringing on record the legal representatives of Bhuili, deceased, and there was no mention of the Will in the reply to the afore mentioned application. According to the learned counsel for the plaintiff-respondent that was the first opportunity available to the defendant-petitioner when he could have set up the Will. The application of the plaintiff-respondent was allowed vide order dated 17.1.1997. It is, therefore, claimed that the defendant-petitioner is estopped from setting up the Will at this stage by seeking amendment under Order 6 Rule 17 of the Code in his written statement. The Civil Judge has dismissed the application vide impugned order dated 3.3.2001. Feeling aggrieved by the said order, the defendant-petitioner has filed the present revision petition.
5. Sh. Lokesh Sinhal, Advocate for the defendant-petitioner has argued that the Civil Judge has committed a grave error in law by dismissing the application on the ground of delay. According to the learned counsel, the delay alone cannot be the basis for dismissing the application under Order 6 Rule 17 of the Code. For this proposition he has placed reliance on a judgment of the Supreme Court in the case of B.K.N. Pillai v. P. Pillai and Anr., A.I.R. 2000 S.C. 614 and also a judgment of this Court in the case of Dalip Kaur and Anr. v. Major Singh and Ors. (1995-3)111 P.L.R. 432. He has further argued that the amendment would not change the nature of the suit and, therefore, the same should have been allowed by the Civil Judge.
6. Sh. A.L. Jain, learned counsel for the respondents has on the other hand argued that the amendment if allowed would amount to setting up a destructive plea and the admission made to be withdrawn. According to the learned counsel once the case of the defendant-petitioner pleaded in the written statement is the consent decree dated 11.8.1993 which is subject matter of challenge in the suit by the plaintiff-petitioner then it would be setting up a destructive plea inasmuch as if the Will is allowed to be set up then the plea of validity of collusive decree cannot stand. He has further argued that the law regarding the amendment may be liberal but still some plausible explanation for the delay caused in pleading the amendment has to be furnished. According to Mr. Jain no explanation has been furnished and the only argument raised in the application is that by an inadvertence the Will dated 4.12.1992 could not be produced as it was kept in the brief by the learned counsel for the defendant-petitioner. For this proposition, he has placed reliance on a judgments of the Supreme Court in the case of Shrimoni Gurdwara Parbandhak Committee v. Jaswant Singh (1997-2)116 P.L.R. 648 and H.M.M. Coaches Ltd v. Jayee Coach Builders Limited and Ors. (2001-1)125 P.L.R. 729. He has also placed reliance upon a judgment of this Court in the case of Rajinder Kishore and Ors. v. Kesar Doss and Ors. (1985-1)87 P.L.R. 580 to argue that if inadvertence or negligence is allowed to be pleaded then in every case amendment of the pleadings will have to be allowed. According to the learned counsel the judgment relied upon by the learned counsel for the defendant-petitioner also supports the argument that destructive plea cannot be allowed to be taken and the admissions made cannot be permitted to be withdrawn by allowing the amendment.
7. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and have perused the record with their assistance. In my considered opinion, this revision petition is devoid of merit and the same is liable to be dismissed because in the written statement filed by the defendant-petitioner the plea of validity of the collusive decree dated 11.8.1993 has already been asserted. Allowing the setting up the Will would amount to permitting pleadings of a destructive plea which is not permissible by law. This is the view taken by the Supreme Court in the case of Jaswant Singh (supra). Their Lordships of the Supreme Court repelling the amendment sought to be incorporated by raising mutually destructive plea observed in para 3 as under :-
"We find no force in the contention of learned counsel for the petitioner that the pleading does contain the gift clause in the original written statement and that it is sought to be elaborated by obtaining proper documents at this belated stage. It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement but it is for the Court to consider whether the case can be property considered in deciding the issue. But in this case the plea in the written statement is mutually destructive. In the first written statement, they have denied the title of Isher Singh himself. When such is the situation, how can they set up a title in him and plead gift made by Isher Singh in favour of the petitioner-Committee. Under these circumstances the High Court has rightly refused to grant the amendment. Moreover, there is no explanation given as to why they came forward with this plea at the belated stage after the parties had adduced the evidence and the matter was to be argued. Under these circumstances, we do not, find any error of jurisdiction or material irregularity in the exercise of jurisdiction warranting interference."
8. Similar view has been taken by the Supreme Court in the case of B.K.N. Pillai (supra). In that case also it has been observed that although the law regarding amendment is liberal and alternative plea is permissible to be raised in defence but still inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts cannot be allowed to be incorporated by means of an amendment in the pleadings. The observations of their Lordships are as under:
"The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleading should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendments of plaint or written statement.
9. In so far as the question of delay is concerned. Learned Counsel for the defence-petitioner is correct that it cannot constitute the sole basis for denying the amendment and this view is supported by the observations of the Supreme Court in the case of B.K.N. Pillai (supra) and of this Court in the case of Dalip Kaur (supra).
10. In view of the above discussion it is held that the impugned order dated 3.3.2001 does not suffer from any legal infirmity of such a nature which could be called a material irregularity or illegality warranting interference under Section 115 of the Code. The defendant-petitioner is to blame himself for setting up all the contradictory pleas in the written statement.
For the reasons recorded above, this revision petition fails and the same is dismissed.