Gurmail Singh vs Balbir Singh and Others

L.N. Mittal, J.

CR No. 220 of 2013

Counsel for the parties have stated that respondents no. 1 to 4 are the only legal representatives of their mother Dalip Kaur respondent no. 5 since deceased. Accordingly, as prayed for by counsel for the parties, respondent nos. 1 to 4 are brought on record as legal representatives of Dalip Kaur respondent no. 5 for the purpose of this revision petition subject to all just exceptions. Office to make necessary correction in the title of the revision petition. Defendant no. 2-Gurmail Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 8.10.2012 Annexure P/7 passed by the trial court thereby dismissing application Annexure P/6 filed by defendants no. 2 petitioner for permitting him to file his separate written statement.

Suit was filed by plaintiffs Mansa Singh and his wife Dalip Kaur. Both of them have since died and are represented by respondents no. 1 to 4 as their legal representatives. Petitioner Gurmail Singh is defendant no. 2 in the suit whereas Prem Singh respondent no. 6 is defendant no. 1. Both defendants are real brothers of Mansa Singh plaintiff no. 1 since deceased. Defendants filed join written statement dated 20.2.2001 Annexure P/2.

Defendant no. 2 has alleged in his application Annexure P/6 that at the time of receiving summons in the suit, both the defendants were residing together and miscellaneous family affairs were being looked after by Prem Singh defendant no. 1. Defendant no. 1 engaged Mr. R.N. Goyal, Advocate as counsel in the suit and also obtained signatures of defendant no. 2 on the vakaltnama. Defendant no. 1 also got prepared joint written statement on behalf of both defendants wherein it was wrongly pleaded that defendant no. 1 is owner in possession of the suit property. Defendant no. 1 played fraud with respondent no. 2 in this regard. Defendant no. 1 claimed to be owner in possession of the suit property and adjoining site. On these averments, defendant no. 2 sought permission to file fresh separate written statement. The aforesaid application has been dismissed by the trial court vide impugned order Annexure P/7 which is under challenge in this revision petition at the hands of defendant no. 2.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner reiterated the version of the petitioner as stated in the application as noticed hereinbefore. Counsel for the petitioner also contended that written statement Annexure P/2 has not been signed by defendant no. 2 and has been signed by defendant no. 1 only.

I have carefully considered the matter. Joint written statement Annexure P/2 is dated 20.2.2001. Application Annexure P/6 filed by defendant no. 2 for filing separate written statement is dated 12.11.2011. The said application was moved more than 10 years after the original written statement had been filed. Even evidence of the parties had concluded more than five years before application Annexure P/6 was filed. Evidence of the plaintiffs concluded on 2.12.2005 and evidence of defendants concluded on 14.6.2006 and application Annexure P/6 was filed on 12.11.2011. If on the averments made in the application, defendant no. 2 is permitted to file fresh written statement, then no case would come to logical conclusion. On the other hand, in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure, even 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, defendant no. 2-petitioner wants to file a completely new written statement by superseding the earlier written statement and application for this purpose has been moved at the fag end of the trial more than five years after conclusion of evidence by both the parties. Consequently, defendant no. 2 cannot be permitted to do so.

The contention of counsel for the petitioner that written statement Annexure P/2 was not signed by defendant no. 2 cannot be accepted. No such plea has been taken either in application Annexure P/6 or even in the instant revision petition. On the contrary, it has been repeatedly pleaded in the application Annexure P/6 as well as in the instant revision petition that joint written statement Annexure P/2 was filed by both the defendants. Consequently, it cannot be said that the written statement Annexure P/2 has not been signed by defendant no. 2.

For the reasons aforesaid, I find that application Annexure P/6 filed by defendant no. 2 petitioner has been rightly dismissed by the trial court. There is no perversity, illegality or jurisdictional error in impugned order of the trial court warranting interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed.

CM No. 16151. CII of 2013

The application is disposed of as having been rendered infructuous.