Punjab-Haryana High Court
Hardayal Singh And Ors. vs Kirpal Singh on 29 July, 1999
Equivalent citations: (1999)123PLR258
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This petition is directed against the order passed by the learned Additional Civil Judge (Senior Divisional), Giddar baha dated 22.5.1999. Vide this order the learned Judge declined an application filed by the defendants for amendment of the written statement.
2. The plaintiff had filed a suit for permanent injunction seeking order of restrain against the defendants from closing the door, opening in the street and the street in any manner, whatsoever. The said suit was instituted in April, 1997. The suit was contested by the defendants. They filed written statement to which the replication was filed. Parties led respective evidence and the case was fixed up for rebuttal evidence when the application in question was filed. The defendants wanted to amend the written statement to introduce a claim by way of counter-claim on the averment that the gate shown as EF in the site plan annexed to the plaint be removed.
3. The learned counsel appearing for the petitioners contended that no prejudice is likely to be caused to the plaintiff if the said application is allowed. On the contrary, learned counsel for the respondent-contended that it will amount to permitting the change of entire case and the application has been intentionally filed at a belated stage and is totally frivolous.
4. The learned trial Court while rejecting the application formed the opinion that the version now sought to be pleaded by the defendants is contrary to the stand earlier taken and as such rejected the amendment.
5. The plaintiff had taken a definite stand in paragraph No. 1 and 2 of the plaint that the property in question was joint with other co-owners and after partition took place between the parties long ago, he had opened the door in the street. These averments, though partly admitted, but were partly denied, however, vaguely. It is settled principle of law that pleadings of the parties before the Court should be definite. It was obligatory on the part of the defendants to deny the averments of the plaint and to set their case clearly and without any ambiguity. After having opted to contest the suit on these pleadings and evidence of the parties having been practically closed the defendants cannot be permitted to take a somersault in their pleading so as to completely alter their pleadings to the prejudice of the plaintiff.
6. Learned counsel for the petitioner relied upon the judgment of the Supreme Court in the case of Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Das (dead) by LRs, 1998(1) P.L.J. 667 to argue that the counter claim can be raised at any time even after filing the written statement. The judgment relied upon is the judgment of the Highest Court of the land and there could be no dispute to the legal proposition enunciated in this judgment. However, the learned counsel has not been able to show as to what advantage would be of this judgment to the petitioner, in the facts and circumstances of the case in hand. The trial Court did not reject the application on the ground that counter claim could not be filed after filing written statement. The reasons given for rejecting the application, amongst others, are altering the case completely to the prejudice of the other party, filing application for amendment at a belated stage, without any sufficient cause or explanation. Further more, the defence sought to be raised by amendment appears to be an after thought. These facts were also in the knowledge of the defendants. They sought to have pleaded and proved these averments at the initial stage of the trial.
7. For the reasons afire-stated I am unable to see any error of jurisdiction or otherwise in the impugned order. Consequently, this application is dismissed without any order as to costs.