Har Lal vs Manbhar

S.S. Kang, J.

This revision petition u/s 115 of the Code of Civil Procedure, is directed against the order dated August 21, 1986, of the learned Additional District Judge, Bhiwani, whereby he has allowed the defendant''s application under Order 6, Rule 17 of the Code of Civil Procedure seeking amendment of his Written Statement. The facts giving rise to this petition may be recounted in brief.

Har Lal, petitioner, filed a suit for specific performance of agreement dated February 9, 1979, alleging that the defendant Manbhar had agreed to sell his land for a consideration of Rs. 20,250/ out of which Rs. 18,000/ had been paid at the time of execution of the agreement for sale; that the balance amount of Rs. 2,250/ was to be paid at the time of the registration of the sale deed which was to be executed within two months of the date of the execution of the agreement; and that since the defendant did not agree to execute the sale deed, the plaintiff was constrained to file the suit. The suit was resisted by Manbhar, defendantrespondent. He filed a Written Statement and in para 2 thereof pleaded that the averments in para 2 of the plaint were not admitted and were denied. He further pleaded that the whole action of the plaintiff seemed to have been grounded on deceit and that the plaintiff had never asked the defendant to get the sale deed registered. He also raised other pleas in the Written Statement.

The learned trail judge decreed the suit. Manbir filed an appeal and made an application under Order 6, Rule 17, C.P.C., for amendment of the Written Statement. It was stated in the application that the applicant be allowed to make an amendment of the Written Statement and be permitted to add to the averments in para 2 that the defendant was not married and had no children, his parents were dead, he wan illiterate and a simple person and that he knew only to sign; that Har Lal and Shiv Lal had conspired in order to grab his land and property; that Shiv Lal had made false allegations against the defendant; that the latter had committed a theft in his house and had claimed the ornaments which were defendant''s property which he (the defendant) had pledged with Chhajj, Rup Ram and Mahabir, glomiths, as belonging to him (the former); that the defendant had been coerced by the police and forced to thumb mark certain papers; that it seemed that one such paper had been used to prepare an agreement for sale, and that this was a false document and no sale consideration had passed. This application was opposed by the petitioner/plaintiff. The learned Additional District Judge, however allowed the application and permitted the defendant to amend the Written Statement. Aggrieved by that order, the petitioner has filed the present revision petition.

Shri R.S. Mittal, Senior Advocate, learned counsel for the petitioner, has argued that Manbhar, defendant, had taken clear and unequivocal pleas in the Written Statement; that there had been a fullfledged trial of the issues arising between the parties; and that the appellate court had acted with material irregularity by permitting the amendment of the Written Statement and permitting the defendant to take a wholly new defence. He further contended that previously the plaintiff had pleaded only fraud and deceit; that there was not even a whisper in the Written Statement regarding the coercion by the police; that this was a totally new defence; that the plaintiff/petitioner had come to acquire valuable rights under the decree passed by the trial Court and the defendant cannot be permitted to defeat these rights, and that he had not given any reason in the application for amendment as to why the amendment sought could not be incorporated in the Written Statement when it was prepared and even later during the course of the trial of the suit.

These arguments have not impressed me. Manbhar had clearly pleaded in his Written Statement that the plaintiff had committed a fraud, and all the proceedings taken were based on deceit; that he had not received Rs. 18,000/ and that the alleged agreement of sale was a false document. In the application he had explained that he was illiterate and knew only to sign; that he was all alone, had no parents, wife or children to aid and advise him; and that the plaintiff and Shiv Lal had taken advantage of his ignorance. These facts are sufficient explanation for the absence of allegations of coercion in the plaint. These allegations are not wholly alien to the previous pleas of fraud and deceit. They do not constitute a totally new case, or defence. Therefore, the decision of the Final Court in Naqubai Ammal v. B. Shama Rao, AIR 1956 SC 593 and of this Court in Balwan Singh v. Dharam Singh, 1985 R.R.R. 133 : 1985 PLJ 432 relied upon by Shri Mittal are of no help to him. In both the cases, the action had been sought to be avoided on the plea that there was a collusion. Later on it was sought to be pleaded that, in fact, fraud had been perpetrated. It was in this context that their Lordships of the Supreme Court held that there was a fundamental distinction between a proceeding which is collusive and one which is fraudulent. In the present case, however, the defendant had not previously pleaded collusion and has not sought to make out a case of fraud. Even in the Written Statement, the defendant''s case was that the plaintiff had been guilty of fraud. The decision in Ranjit Kaur v. Ajaib Singh, 1984 PLR 608 too is of little help to the counsel for the petitioner. That is a decision on the peculiar facts of the case. No proposition of law, as such, has been enunciated. In the process of adjudicating on the desirability of the amendment it was observed that the applicant had not given any reason in the application for amendment as to why it was moved so late.

It is wellsettled that the approach towards permission to amend the Written Statement is more liberal than towards the amendment of the plaint or a petition. In the present case, from the impugned order it is apparent that the appellate court was aware of the wellknown principles governing the exercise of discretion in matters of amendments of the written statement and the learned lower court has correctly applied these principles. In any case, the learned counsel has not been able to establish that there has been any material irregularity in the exercise of jurisdiction by the lower appellate court in allowing the application for amendment.

For the foregoing reasons, I find no merit in this petition and dismiss the same but with no order as to costs.