Balwant Singh vs Bhim Singh

Rakesh Kumar Jain, J.—This revision petition is directed against the order dated 25.1.2013 by which application filed by the defendants for amendment of the written statement has been declined.

In brief, the plaintiff filed suit for specific performance on the basis of agreement to sell dated 15.5.2004 in the year 2009. The written statement was filed in 2010, in which the petitioner had taken a stand that the agreement was not executed by him. It was alleged that the agreement might have been prepared on the blank thumb-marked papers, which were lying with the conciliator, who had earlier tried to patch up the dispute between the parties. The petitioner was also apprehensive that the thumb-marks appended on the agreement even might not be belonging to him therefore, he moved an application to the trial Court on 14.10.2011 seeking permission to examine and take photographs of the disputed and standard/specimen thumb impressions/signatures present on the file. The said permission was granted by the learned trial Court on 14.10.2011 itself. Thereafter, the petitioner engaged a handwriting and finger print expert, who took the thumb impression appended on the agreement as disputed thumb-impression and also took the specimen thumb impression available on the record belonging to the petitioner and compared the same and prepared his report dated 27.10.2011 as per which the thumb impression available on the agreement to sell were un-comparable being smudged in ink. After obtaining the record, the petitioner moved an application for amendment of written statement and at that time even the issues were not framed. The application was filed on 14.12.2012 but the learned trial Court declined the request of the petitioner vide its impugned order dated 25.1.2013 on the ground that the petitioner cannot be allowed to withdraw his admission as in the earlier written statement he had alleged that the thumb impressions appearing on the blank papers left with the conciliator might have been used for the purpose of preparation of the agreement to sell.

The petitioner, thereafter challenged the order dated 25.1.2013 by way of the present revision petition on 12.2.2013 in which at the time of notion of motion the following order was passed by this Court on 14.2.2013:-

Learned counsel for the petitioner submits that as per Section 31 of the Indian Evidence Act, admissions are not conclusive as the same can be rebutted by the production of some contradictory evidence and no prejudice is going to be caused to the other party by amending written statement. The amendment in the written statement is necessary as signatures of the petitioner-defendant were taken on blank papers and the same has been used. The petitioner came to know subsequently and because of that reason, amendment is necessary. Learned counsel also relies upon the judgment of this Court in Paramjeet Kaur and Others Vs. Smt. Kartar Kaur and Others,

Notice of motion for 08.03.2013.

Meanwhile, proceedings may continue but final order be not passed.

Learned counsel for the petitioner has submitted that the law with regard to amendment is liberal vis-�-vis the amendment of written statement as defendant can take all sort of pleas, may be self contradictory to defeat the claim of the plaintiff. It is submitted by him that he had applied for taking disputed and specimen thumb impression of the petitioner from the record before the issues were framed and the trial could have commenced. After the permission was granted, the expert was appointed, who had submitted his report on 27.10.2011 and immediately thereafter, the application was filed for the purpose of amendment in the written statement. It is thus argued that there is no delay on his part and now with the report of the handwriting expert, it is prima facie proved that the thumb impression appended on the agreement to sell does not belong to him because it can not be proved having been smudged in ink. He has further submitted that the respondents can still be compensated with cost, if the application is allowed.

On the other hand, learned counsel for the respondents, while vehemently opposing the revision petition, has read the averments made in the written statement filed earlier, wherein according to him the defendants had categorically admitted his thumb impression on the agreement to sell. The paragraph, which has been pointed out by learned counsel for the respondents, reads thus:-

This only fact is sufficient to prove that the alleged agreement is forged and fabricated document and the same is prepared on blank thumb marked paper without knowledge and notice of answering defendant, without consideration, with bad intention to cheat and defraud the answering defendant in collusion with aforesaid conciliator to grab the land of answering defendant and to disturb the compromise reached between parties on 5.3.2004.

He then also referred to paragraph ''r'' at page 36 of the paper-book in respect of the averment that "existence of long broad level litigation between parties as mentioned above itself is sufficient to displace the existence of alleged document between parties in the shape of agreement and now plaintiff cannot succeed in misusing the aforesaid thumb marked blank stamp paper in shape of alleged agreement." He has also referred to paragraph ''s'' to contend that "in collusion with aforesaid conciliator Lakhbir Singh, witnesses and scribe etc. if any, by misusing the blank thumb mark stamp papers lying with the conciliators as mentioned above".

Learned counsel for the respondents has also argued that the case is now fixed for arguments on 18.7.2014 and at this belated stage, the application for amendment in the written statement should not be allowed.

I have heard both the learned counsel for the parties and examined the record with their able assistance.

The question involved in the main case, which is normally to be decided by the trial Court, is "whether there is a genuine agreement to sell between the parties to the dispute"?

Because the defendant had denied a voluntary act on his part of entering into agreement with the plaintiff rather he has urged that if there is anything in the name of the agreement to sell, it is an act of fraud on the part of the plaintiff, who might have converted the blank thumb marked papers lying with the conciliator. He had never admitted the execution of the agreement and all that has been said is that the agreement to sell is a fraud because the blank papers might have been used, which he had thumb-marked when it was left with the conciliator. It was only his thinking that those documents could have been used at the most by the plaintiff but when it dawned upon him that even those documents might not have been used, he immediately applied for examination of the disputed as well as specimen thumb impression by an expert before issues could be framed and the permission was granted by the trial Court on the same day. Thereafter, the expert made a report that the thumb impressions are un-comparable being smudged with ink. The action taken by the petitioner was quite expeditious inasmuch as when the order was passed on 25.1.2013, the present revision was filed on 12.2.2013 in which this Court had stayed the passing of final order and directed that the proceeding may continue.

In view thereof, it cannot be said that the petitioner was causing any delay in the suit filed by the plaintiff. The application was moved before the issues were framed, when the trial had not even commenced and the petitioner could have applied for amendment in the written statement, after receipt of the report which took a little time.

In view of the aforesaid discussion, I am of the considered opinion that the impugned order is patently erroneous and illegal and consequently, the revision petition is allowed and impugned order is hereby set aside.