Punjab-Haryana High Court
Fakiria vs Mojudeen & Others on 28 February, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
CR No.1298 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.1298 OF 2012
DATE OF DECISION: FABRUARY 28, 2012
Fakiria
.... Petitioner
Versus
Mojudeen & others
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: Mr. Sanjay Verma, Advocate for the petitioner.
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L.N. MITTAL, J. (ORAL)
Defendant No.1-Fakiria has filed this revision petition under Article 227 of the Constitution of India assailing order dated 17.01.2012 Annexure P-5 passed by learned Civil Judge (Junior Division), Bilaspur, District Yamuna Nagar, thereby dismissing application Annexure P-3 moved by defendant No.1-petitioner for amendment of written statement.
Respondent No.1-plaintiff Mojudeen has filed suit for partition of the suit land measuring 1 Kanal 9 Marlas against defendant No.1-petitioner and proforma respondents No.2 to 6 as defendants No.2 to 6. However, only defendant No.1 is contesting the suit whereas defendants No.2 to 6 are ex parte in the trial Court. Plaintiff in the suit claimed 1/6th share in the suit land. Defendants No.1 to 4 are real brothers whereas defendants No.5 and 6 are son and wife respectively of Telu who was also real brother of defendants No.1 to
4. Plaintiff allegedly got in exchange 1/6th share in the suit land from Meeriya, sixth brother of the defendants.
CR No.1298 of 2012 -2-
Defendant No.1, by way of amendment, sought to plead that Meeriya is also co-sharer in land of other Khasra numbers which have not been included in the suit and, therefore, the suit is bad for partial preemption.
I have heard learned counsel for the petitioner and perused the case file.
Counsel for the petitioner contended that petitioner by amendment of written statement wants to raise only legal plea that the suit is bad for partial partition and, therefore, proposed amendment of written statement should be allowed. The contention is completely misconceived. The said plea cannot be said to be purely legal plea. It involves mixed question of law and facts. To substantiate this plea, defendant No.1 has to prove as a matter of fact that Meeriya (plaintiff's predecessor) is cosharer in other khasra numbers also. Consequently proposed additional plea sought to be raised by amendment of written statement could not be said to be purely legal plea.
In addition to the aforesaid, plaintiff has allegedly taken 1/6th share of Meeriya in the disputed khasra No.51//17/2 only and thus plaintiff is co-sharer in the suit land comprised of said khasra number only. Plaintiff is not co-sharer in other khasra numbers mentioned by defendant No.1 in amendment application. Even if Meeriya is co-sharer in the said other khasra numbers, the plaintiff cannot include land of those khasra numbers in the partition suit because plaintiff is not cosharer in the said other land. Consequently, proposed amendment of written statement is irrelevant and, therefore, cannot be allowed.
In addition to the aforesaid, application for amendment of written statement was filed at the stage of rebuttal evidence and final arguments after both parties had already led their evidence. In view of proviso to Order 6 Rule CR No.1298 of 2012 -3- 17 of the Civil Procedure, amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not have raised the matter before commencement of trial inspite of due diligence. In the instant case, amendment application was moved by defendant No.1 long after commencement of trial and in fact at the fag end of the trial. It cannot be said that defendant No.1 could not have taken this plea before commencement of trial inspite of due diligence. Consequently, in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure also, the proposed amendment of written statement cannot be allowed.
For the reasons aforesaid, I find that the trial Court has rightly dismissed the application of defendant No.1-petitioner for amendment of written statement. Impugned order of the trial Court, therefore, does not suffer from any perversity, illegality or jurisdictional error, calling for interference at the hands of this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is bereft of any merit and is, therefore, dismissed in limine.
(L. N. MITTAL) JUDGE 28.02.2012 'raj'