Harbans Kaur and Others vs Sant Singh and Others

L.N. Mittal, J.

C. M. No. 20696-C-II of 2012 :

Allowed as prayed for.

C. M. No. 20697-C-II of 2012 :

This is application for impleading legal representatives of Jit Singh - defendant No. 3 (since deceased). It is alleged that Jit Singh has left behind widow, a son and three daughters, as mentioned in paragraph 2 of the application (respondents No. 2 to 6 herein) as his only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraph 2 of the application, are ordered to be brought on record as legal representatives of Jit Singh - defendant No. 3 (since deceased), for the purpose of this revision petition.

Main Case :

This revision petition under Article 227 of the Constitution of India has been filed by legal representatives of defendant No. 1 Ajit Singh, along with defendant No. 2 Amrik Singh, to challenge order dated 02.08.2012 (Annexure P-7) passed by learned Additional District Judge, Ludhiana, thereby dismissing application (Annexure P-5) moved by the petitioners (during pendency of their first appeal) for amendment of written statement.

Suit filed by respondent No. 1 - plaintiff Sant Singh has been decreed by the trial court vide judgment and decree dated 16.02.2011. Case of the plaintiff is that he purchased the suit land from Jit Singh - defendant No. 3 and Niranjan Singh - predecessor of defendants No. 4 and 5, vide sale deed dated 23.01.1963, and therefore, sale of the suit land by the same vendors to defendants No. 1 and 2, vide subsequent sale deed dated 28.01.1970, is null and void and does not effect the rights of the plaintiff over the suit land.

By way of amendment of written statement, defendants No. 1 and 2 want to plead that they are bona fide purchasers of the suit land for valuable consideration. Plaintiff, by filing reply, resisted the aforesaid amendment application. Learned lower appellate court, vide impugned order (Annexure P-7), has dismissed the application for amendment of written statement. Feeling aggrieved, the instant revision petition has been filed.

I have heard learned counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that the petitioners purchased the suit land after perusing the revenue record and they are, therefore, bona fide purchasers of the suit land for valuable consideration because they had perused the revenue record before purchasing the suit land and it is a legal plea. It was also argued that law of amendment of pleading is liberal, and therefore, proposed amendment should be allowed being essential for proper adjudication of the lis.

I have carefully considered the aforesaid contentions, but the same cannot be accepted.

The question, whether petitioners are bona fide purchasers of the suit land or not, cannot be adjudicated in the instant revision petition being beyond the scope of revision petition. The said question could be adjudicated upon by the courts below if proposed amendment of written statement had been allowed. The plea sought to be taken cannot be said to be legal plea because counsel for the petitioners submitted before the lower appellate court that on the basis of amended pleadings, new issues would be framed and evidence would also be led by the petitioners. It is thus apparent that plea sought to be taken by amendment of written statement is not a purely legal plea. On the other hand, the proposed amendment of written statement would necessitate remand of the suit and de novo trial. The suit had been instituted almost ten years ago. It may take another ten years to decide the same by the trial court, followed by first and second appeals.

As regards contention that law of amendment of pleadings is liberal, the said contention is no longer tenable in view of amended provision of Order 6 Rule 17 of the CPC (in short - CPC), as it now exists. Before the said amended provision came into force, law of amendment of pleadings was quite liberal and it was more liberal for permitting amendment of written statement, as compared to amendment of plaint. However, after the aforesaid amended provision has come into force, the law of amendment of pleadings is no longer liberal, but is governed and fettered by the said provision. It lays down that amendment of pleadings shall not be allowed after commencement of trial, unless the party seeking amendment could not have raised the matter before commencement of trial in spite of due diligence. In the instant case, amendment of written statement has been sought at the stage of first appeal i.e. not only after commencement of trial, but also after conclusion of trial by the trial court. Consequently, proposed amendment of written statement has been rightly declined because it cannot be said that the petitioners, in spite of due diligence, could not have raised the matter before commencement of trial. For the reasons aforesaid, I find that there is no ground for permitting proposed amendment of written statement at first appellate stage. The application moved by the petitioners for amendment of written statement has, therefore, been rightly declined by the lower appellate court. Impugned order of the lower appellate court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine.