Punjab-Haryana High Court
Parbhati Lal vs Dalip Singh And Another on 24 April, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 2831 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 2831 of 2010
Date of Decision : April 24, 2012
Parbhati Lal .... Petitioner
Vs.
Dalip Singh and another .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sanjay Mittal, Advocate
for the petitioner.
Ms. Pratibha Yadav, Advocate
for the respondents.
* * *
L. N. MITTAL, J. (Oral) :
Plaintiff Parbhati Lal, aggrieved by order dated 06.03.2010 (Annexure P-1), passed by learned Civil Judge (Junior Division), Mohindergarh, has filed this revision petition under Article 227 of the Constitution of India to challenge the said order. By the said order, trial court has allowed the application of defendant-respondents for amendment of their written statement.
The dispute relates to ultimate inheritance of Thanu son of C. R. No. 2831 of 2010 2 Dhokal. He had a son Jai Ram, who died during life time of Thanu. However, Thanu left behind Kishni as widow and Bhuri Devi as widowed daughter-in-law. Plaintiff claims to have got the suit property from Kishni Devi, whereas defendants claimed to have got the suit property from Bhuri Devi.
By way of amendment, defendants wanted to plead that Bhuri Devi performed karewa marriage with Kurda Ram. Defendants, by way of amendment, thus wanted to plead that they are sons of Bhuri Devi. Amendment application was opposed by plaintiff. However, the said application was allowed vide order Annexure P-1, which is under challenge in this revision petition.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the petitioner contended that amendment of written statement could not be allowed after commencement of trial.
On the other hand, counsel for respondents contended that amendment of written statement has been rightly allowed because earlier, this plea could not be taken as pedigree table and revenue documents were in Urdu and defendants could not go through the said documents and could not mention the pedigree table in the original written statement. It was also contended that subsequent to amendment of written statement, further proceedings have already taken place in the trial court. C. R. No. 2831 of 2010 3
I have carefully considered the rival contentions. In view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short - CPC), amendment of pleadings cannot be allowed after commencement of trial, unless the party seeking amendment could not raise the plea before commencement of trial in spite of due diligence. In the instant case, admittedly, application for amendment of written statement was moved after plaintiff-petitioner had led his evidence i.e. long after commencement of trial. Consequently, the said amendment could not be allowed because it cannot be said that the defendants, in spite of due diligence, could not have raised this plea before commencement of trial. It is surprising that the defendants, in order to plead that they are sons of Bhuri Devi, had to go through pedigree table and revenue record to know the name of their mother. This situation cannot be accepted. The defendants knew the name of their mother when they filed the original written statement, and therefore, they should have pleaded this fact in the original written statement. This is very material fact, which cannot be introduced by way of amendment of written statement. The mere fact that some subsequent proceedings after amendment of written statement have taken place would not validate the impugned order, which is otherwise illegal and suffers from jurisdictional error.
Counsel for the respondents cited judgment of Hon'ble Supreme Court namely Revajeetu Builders & Developers vs. C. R. No. 2831 of 2010 4 Narayanaswamy & Sons & Others reported as 2010 (1) RCR (Civil) 27. However, this judgment does not pertain to interpretation of Order 6 Rule 17 CPC as it now exists after its amendment in the year 2002. The said judgment rather pertains to Civil Suit filed in the year 1996, to which amended provision of Order 6 Rule 17 CPC, as it now exists, is not applicable.
For the reasons aforesaid, I find that impugned order of the trial court is illegal and suffers from jurisdictional error because trial court had no jurisdiction to permit the proposed amendment of written statement after commencement of trial. Accordingly, the instant revision petition is allowed. Impugned order (Annexure P-1) passed by the trial court is set aside. Application for amendment of written statement moved by defendants/respondents stands dismissed.
April 24, 2012 ( L. N. MITTAL ) monika JUDGE