Chand Singh and Others vs Major Singh and Another

Sat Pal, J.—This petition has been preferred against the order dated 4th April, 1997 passed by the Additional District Judge, Sangrur. By this order, the learned Addl. District Judge has allowed the respondents/defendants to amend the written statement filed by them before the learned trial court in the appellate proceedings.

It may be pointed out here that in the written statement filed before the learned trial Court, the respondents/defendants had taken the plea that they were the bona fide purchaser for value and their rights were protected under the Transfer of Property Act and the revenue record regarding the suit land was verified. It was further stated that no objection was raised by anybody and the plaintiff had no right to file the present suit. In the application for amendment, the respondents/defendants wanted to add the following para;

"Bazira deceased, had executed a Will in favour of defendants and he admitted it to be correct before the AC-II Grade, who vide his order dated 6.7.87 sanctioned mutation regarding inheritance of Bazira Singh, deceased in favour of defendants. The will in favour of defendants is legal and valid and on its basis they are legal heirs of Bazira, deceased."

Mr. Garg, learned counsel appearing on behalf of the petitioner, submits that in the proposed amendment, the defendants have taken altogether different stand from the one taken in the original written statement that they were the bona fide purchaser for value and their rights were protected under the Transfer of Property Act whereas by virtue of the proposed amendment, the plea taken by them is that they had inherited the suit land by virtue of a will executed in their favour by deceased Bazira and it was on the basis of that will that the entries were corrected by A.C. II Grade vide his order dated 6.7.87. He submits that by the proposed amendment, the written statement becomes mutually destructive and as such the amendment should not have been allowed. He further submits that even the application for amendment has been filed at a very belated stage. According to him, the suit was filed on 16th July, 1990 and the written statement was filed on 28.7.1991 and the suit was decreed on 6.8.1994 but the present application for amendment has been filed before the lower appellate court on 12th Nov. 1996, i.e. more than 5 years from the date when the original written statement was filed. He contends that on this ground also the application for amendment should not have been allowed by the lower appellate Court. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in Shiromani Gurdwara Prabhandak Committee Vs. Jaswant Singh, .

Mr. Brar, learned counsel appearing on behalf of the respondents, however, submits that the real controversy between the parties is with regard to entries made in the revenue record and in the application for amendment, the respondents have pleaded that the entries in the revenue records had already been in existence as far back as 1987 and the respondents by the proposed amendment have only pleaded that those entries have been made on the basis of a will executed by deceased Bazira. He submits that for adjudication of the real controversy, the learned Court has rightly allowed the application for amendment as it was in the interest of justice. He further submits that in terms of the law laid down by the Supreme Court in Akshaya Restaurant Vs. P. Anjanappa and Another, , even admission can be explained and even inconsistent pleas can be taken in the pleadings. He, therefore, contended that in the application for amendment, the respondents had explained the admission and as per the law they could with the plaintiff, agreeing to, sell the suit property on 5th January, 1991 but in the application for amendment, the existence of the agreement dated 25th January, 1991 was not denied but on the contrary it was explained that the said agreement in fact was not for sale but for development of the suit property. The amendment sought in the present case is not of that kind. In the present case, as stated herein above, the stand taken in the original written statement was that the defendants had purchased the suit land whereas in the application for amendment they have now taken the stand that they had inherited by virtue of a will executed by late Bazira Singh. Even otherwise, there is substantial delay of more than 5 years in filing the application for amendment and thus the delay in my opinion, has not been satisfactorily explained by the defendants.

For the reasons recorded herein, the petition is allowed and the impugned order passed by the learned first appellate court is set aside. Consequently, the application filed by the defendants before the learned lower appellate court under Order VI Rule 17 C.P.C. for amendment of the written statement stands dismissed. The parties are left to bear their own costs.