Harpreet Singh and Others vs Sham Lal

L.N. Mittal, J.

CM No. 16423. CII of 2012

Allowed as prayed for.

CR No. 3910 of 2012

Aggrieved by order dated 3.1.2012 Annexure P/3 passed by the trial court thereby dismissing application filed by defendants for amendment of their written statement Annexure P/2, defendants have filed this revision petition under Article 227 of the Constitution of India to challenge the said order. The respondent-plaintiff alleged in plaint Annexure P/1 that he is owner of the suit property and defendants have trespassed into it and have taken illegal possession thereof. Accordingly, the plaintiff has inter alia claimed possession of the suit property in the suit.

Defendants in their written statement Annexure P/2 admitted the plaintiff to be owner of the suit property and also admitted that the plaintiff was in possession of the suit property till 9.6.1995. The defendants alleged that on 9.6.1995, the plaintiff vide agreement dated 9.6.1995 agreed to sell the suit property and received earnest money and handed over possession of the suit property to the defendants who are in possession thereof since then. The plaintiff also executed power of attorney in favour of father of the defendants.

In amendment application, the defendants alleged that Kishan Lal and Nasib Chand are also claiming themselves to be owners of the suit property and they had also filed suit for possession of the suit property and the said suit was dismissed by the trial court and appeal filed by them was pending before Additional District Judge. Accordingly, the defendants by amendment of written statement sought to deny the ownership of the plaintiff over the suit property and also sought to challenge sale deed dated 6.6.1986 vide which the plaintiff had purchased the suit property.

Respondent-plaintiff by filing reply resisted the amendment application and controverted the averments made therein.

Learned trial court vide impugned order Annexure P/3 has dismissed application for amendment of written statement filed by the defendants who have, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the petitioners and perused the case file whereas respondent has been proceeded against ex-parte.

Counsel for the petitioners contended that the respondent-plaintiff is not owner of the suit property and therefore, plea to this effect is required to be taken by amendment of written statement.

I have carefully considered the matter. Proposed amendment of the written statement has been rightly declined by the trial court. By amendment of written statement, the defendants want to withdraw the material admission made in the original written statement Annexure P/2 regarding ownership of the plaintiff. The defendants cannot be permitted to do so by amendment of written statement. It will cause irreparable loss and injury to the plaintiff and shall effect his valuable right in the suit. In addition to it, the defendants have claimed that they got possession of the suit property from the plaintiff. For this reason also, the defendants cannot be permitted to make proposed amendment in the written statement. Besides it, application for amendment of written statement was made long after commencement of trial. The plaintiff has already concluded his evidence. The case was pending for evidence of the defendants for years together but the defendants failed to lead any evidence and thereafter moved amendment application. In view of proviso to Order 6 Rule 17 of the Code of Civil Procedure, proposed amendment of written statement could not be allowed after commencement of trial. It cannot be said that even after due diligence, the petitioners could not have sought proposed amendment of written statement before commencement of trial. For the reasons aforesaid, I find that application filed by the defendants to amend their written statement has been rightly dismissed by the trial court. There is no perversity, illegality or jurisdictional error in impugned order Annexure P/3 passed by the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is completely meritless and frivolous and is accordingly dismissed.