Punjab-Haryana High Court
Davinder Kumar Sharma vs Darshan Singh Mann on 11 September, 2000
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Darshan Singh Mann filed suit for the recovery of Rs. 67,850/- against Davinder Kumar Sharma on the basis of pronote are receipt alleged to have been executed on 3.6.1996 by the latter in his favour. Defendant contested the suit. It was denied that he received any consideration of Rs. 60,000/-on the basis of alleged pronote and receipt. It was denied that he ever executed any pronote or receipt as set up by the plaintiff. Later on Defendant made an application for amendment of the written statement. By way of amendment, he sought to plead that in fact, he (defendant) had floated committee in the year 1989, in which number of respectables were the participants which was for a period of 12 months. After the expiry of 12 months, the committee used to be reconstituted and the composition of members changed. Plaintiff was, however, continuous member of the said committee. Defendant was its Incharge. Plaintiff in order to secure his money by way of security used to take pronote and receipt from the defendant being Incharge. Certain members had gone defaulters unable to contribute to the committee. There was stagnation in the flow of the business of the committee. There was nothing outstanding against the defendant but the defendant filed this suit on the basis of the pronote and receipt, which he had executed on account of the aforesaid circumstances.
2. Civil Judge, Junior Division. Dabwali declined this application and refused this amendment to the written statement.
3. In my opinion, the proposed amendment was justifiably refused by the trial court. If the proposed amendment is allowed, that will displace the defendant's defence taken originally by him completely. Defendant cannot be allowed to switch over to an entirely new defence. Earlier, he had denied simpliciter the execution of the pronote and receipt and the receipt of consideration therefor. Now, through proposed amendment, he seeks to plead that he did execute this pronote and receipt but as Incharge of the committee business which had been floated by the defendant with a view to secure the plaintiff's money by executing such pronote and receipt in his favour. In Rajinder Kumar v. Manohar Lal Khurana and another, 1999(1) PLJ 178, it was held that "no amendment of written statement can be allowed where new defence inconsistent with the defence originally taken is sought to be introduced." Manohar Lal Khurana had filed petition for eviction on the ground that Harish Kumar had sublet the demised property to Rajinder Kumar. Rajinder Kumar filed written statement. It was denied that property had been sublet. The defence taken up was that the property had been let to both the respondents in the eviction application, namely, Rajinder Kumar and Harish Kumar. The trial proceeded. During the pendency of the same, an application was filed seeking amendment of the written statement. Rajinder Kumar wanted to incorporate that, infact, the shop in dispute was taken on rent by Amir Chand to start a new business in the name and style of Staya General Store for the joint Hindu Family. Rajinder Kumar and Manohar Lal Khurana are members of that Hindu Undivided Family. The rent was subsequently increased from Rs. 2007- per month to Rs. 450/- per month and again to Rs. 500/- per month in the year 1994. Both of them claimed that they were living with their father. It was asserted that the amendment is necessary for the just decision of the case. Manohar Lal Khurana contested the application for amendment. He denied that property in dispute had been let to Amir Chand for business of Satya General Store. It was pointed out that when last opportunity was given for evidence, the petitioner did not produce the evidence and instead has filed the application for amendment in the written statement which would change the nature of the case. It was held that "one cannot allow a party to take ihe pleas changing the nature of the defence. This is so because the other party cannot be compensated with costs. It is one thing to say that the property was taken on rent as joint partners and the other thing to say that it was let to their father and now they carry on the business in it being members of the Hindu Undivided Family." In Ramsaran Mandar and others v. Mahabir Sahu, AIR 1927 Privy Council 18, it was held as under :-
"Their Lordships cannot accede to these arguments. It is not permissible by amendment to change the nature of the suit as framed; and even if it were, the defendants affected by such amendment must have an opportunity to rebut such new cause of action, a course which would involve fresh written statements and a fresh trial. Their Lordships are unable to permit such a course at this stage."
4. In Saraj Din v. Laxmi Bai, wife of Behari Lal and another, 1975 Rent ControI Reporter 532, it was held that "when a new case is set up at a belated stage, amendment should not be allowed."
5. In this case, when defendant had taken up a specific plea that he had never executed this pronote and receipt and had never received the consideration therefor, he has turned round now to plead that he did execute this pronote and receipt but without consideration and due to the aforesaid circumstances, if this amendment is allowed that would displace the plaintiff's line of action and the defendant's defence which he originally set up.
6. Dismissed.
7. Petition dismissed.