Punjab-Haryana High Court
Inder Pal Singh vs Bankey Bihari on 28 July, 2003
Equivalent citations: (2003)135PLR500
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1903 (for brevity the Code) is directed against the order dated 14.5.2003 passed by the Addl. Civil Judge (Sr. Divn.) Anandpur Sahib dismissing the application of the defendant petitioner in which prayer for amendment of the written statement under Order 6 Rule 17 of the Code was made.
2. Plaintiff-respondent has filed Civil Suit No. 195 dated 21.7.2000 for the relief of specific performance of agreement to sell dated 6,2.1997 and two subsequent agreement to sell dated 29.1.1998 and 30.12.1998 and also the endorsements made upon them vide different dates executed by the defendant-petitioner in favour of the plaintiff-respondent. Further prayer has been made for issuance of direction, to the defendant-petitioner to execute the sale deed in favour of plaintiff-respondent after receiving the balance sale consideration and put the plaintiff-respondent in possession as owner of the house. In the alternative, prayer has also been made for recovery of Rs. 5,20,000/- i.e. Rs. 2,60,000/ being the advance money paid by the plaintiff-respondent to the defendant-petitioner and the equal amount as damages.
3. In the written statement the receipt of earnest money of Rs. 2,60,000/- and the date of execution of sale deed agreed between the parties have been admitted. In the agreement, the defendant admitted to have purchased some land from one Gian Chand, Defendant-petitioner had agreed to sell the house for the reason that he was short of money for the transaction he has entered into with the afore-mentioned Gian Chand. The Civil Judge framed the issues and the parties have entered the trial as plaintiff-respondent had tendered in evidence affidavits of six witnesses and three of them have already been cross-examined. It is thus evident that the trial of the suit has already commenced.
4. Defendant-petitioner filed an application to set up the plea that agreement to sell is a unconscionable document and the house could not be sold for a small amount of rupees five lacs. The paragraph sought to be incorporated by way of amendment reads as under:-
"Moreover the agreements to sell in suit as pleaded by the plaintiff are clearly unconscionable documents. These were procured from the defendant under abnormal and pressing circumstances. He was under great stress. He also is a heart patient. The house in suit is the only residential house for the defendants family. It is worth more than rupees forty lacs as its market value. The defendant could have never contemplated and agreed to dispose of the house by way of sale for such a lowest price of Rs. 500000/-. The fact of the matter as demonstrated by all surrounding circumstances are than in fact the three agreements between the parties simply came into existence as a loan intended to be advanced by the plaintiff to the defendant for his pressing needs time about which defendant has stated above, there was no intention for a sale of the only house of such a great value. The execution of these agreements are beyond imagination and estimate under normal circumstances."
5. The application was contested and was opposed tooth and nail. The Civil Judge dismissed the application vide impugned order dated 14.5.2003. The operative part of the order reads as under:
"There is no dispute that the amended Civil Procedure have become applicable w.e.f. 1.7.02. As per the amended provisions the application for amendment cannot be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. The defendant has not averred or prayed so in his application for amendment of the written statement. It is also not disputed that the plaintiff has tendered into evidence the affidavits of six witnesses and out of those three witnesses have been cross-examined. Thus the trial of the suit has already commenced. Defendant in para No. 4 of the written statement has averred that amendment dated 30.12.1998 was again executed at the instance of the plaintiff, otherwise there is no need of doing so. The defendant never requested and required to extended the time. It was the requirement of the plaintiff himself and the extensions were made at the instance of plaintiff exclusively. In view of these averments of the defendant made in his written statement it cannot be said that the proposed amendment is in the nature of clarification and elaboration only. There appears no reasonable basis with the learned counsel for the defendant-applicant to apply the pronouncements referred by him to the facts of the present case. There also appears force in the contentions of the learned counsel for the plaintiff that in the suit for specific performance on the basis of agreement the inadequacy of the sale consideration in view of the admission made by the defendant in the written statement may not be a valid defence. Resultantly, it is held that in view of the statutory amended provisions of the code of civil procedure and finding that the proposed amendment is not in the nature of clarification and elaboration this Court is of the opinion that the defendant cannot be allowed to amend his written statement. Resultantly, the application is declined. Nothing hereinabove shall effect the merits of the case."
6. Shri Hemant Sarin, learned counsel for the defendant-petitioner has argued that no admission made by the defendant-petitioner is sought to be withdrawn and the Civil Judge has wrongly assumed such a position. According to the learned counsel, the paragraphs sough to be added is only to elaborate the stand already taken and does not add any new plea. Learned counsel has further argued that according to the judgment in the case of Prem Bakshi and Ors. v. Dharam Dev and Ors., J.T. 2002(1) S.C. 34 the approach of the Courts with regard to amendment in the written statement should be liberal because it is unthinkable that by amendment of the written statement any prejudice is likely to be caused to the plaintiff-respondents.
7. After hearing the learned counsel, I do not feel persuaded to differ with the Civil Judge. According to the provisions of Order 6 Rule 17 of the Code as amended w.e.f. 1.7.2002 no amendment of pleadings is to be permitted after the commencement of the trial unless cogent reasons are shown by such a party that the matter sought to be incorporated by amendment was not within his knowledge or could not be ascertained with due diligence. The provisions of Order 6 Rule 17 of the Code as amended w.e.f. 1.7.2002 reads as under:
"Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial."
8. A perusal of the above mentioned provisions makes it evident that the amendment of the pleadings, after the commencement of trial, has been made more stringent and it is only in cases where the Court records reasons to come to the conclusion that despite due diligence the matter sought to be incorporated by way of amendment was not in the knowledge of such a party.
9. When the principles incorporated by Order 6 Rule 17 of the Code are applied to the facts of the present case it becomes evident that unconscionable nature of bargain was known to the defendant-petitioner. The stress or the disease of heart were not the facts which were not known to the defendant-petitioner at the time of filing the written statement. The afore-mentioned plea sought to be incorporated by amendment are not covered by the principles enunciated by order 6 Rule 17 of the Code. Moreover it is well settled that once an admission has been made then such an admission cannot be permitted to be withdrawn or diluted by the subsequent amendment. In this regard reference may be made to the judgments of the Supreme Court in the cases of Heera Lal v. Kalyan Mal, A.I.R. 1998 S.C. 618 and Gurdial Singh v. Raj Kumar, 2000(2) S.C.C. 445.
10. For the reasons stated above, this petition fails and the same is dismissed. However, it is made clear that any observations made in the preceding paras or in the orders passed by the Civil Judge shall not constitute an expression of opinion on the merits of the decisions of the suit.