Hartej Pal Singh Alias Shammi vs Inderjit Singh and Others

Paramjeet Singh, J.

CM No. 17542-CII of 2013

Allowed as prayer for. Annexures P-6 and P-7 are taken on record.

CR No. 5598 of 2011

Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 4.3.2011 (Annexure P-3) passed by learned Additional Civil Judge (Sr. Divn.), Samrala whereby application moved by respondent no. 1-plaintiff under Order 6 Rule 17 CPC for amendment in plaint has been allowed.

Admittedly, the suit for specific performance was filed on 12.05.2006 on the basis of agreement to sell dated 09.07.2002 qua specific land measuring 26 kanals 18 marlas and the written statement was filed by the petitioner on 09.06.2008 by taking an objection that the land has not been partitioned and as such petitioner-defendant is incapable of transferring any specific land. Thereafter, the plaintiff filed application for amendment to the extent that land is still a joint land and thereby sought specific performance qua land proposed to be sold by the petitioner-defendant which has been allowed vide impugned order.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner has vehemently contended that amendment cannot be allowed, at this stage, as relief claimed is barred by limitation. The learned counsel has further contended that jamabandi for the year 2001-02 annexed with the suit is a forged and fabricated document. Since respondent no. 1 has not come to the trial Court with clean hands, he is not entitled for any relief.

On the other hand, learned counsel for respondent no. 1 has vehemently contended that as per the agreement, the entire land was mentioned out of which certain land has been purchased by respondent no. 1. Thereafter, he got a copy of jamabandi for the year 2001-02 where a note was made with regard to the partition and vide mutation no. 12285, the petitioner was shown owner of 26 kanals 18 marlas. On that basis, the entire land was not included in the plaint. The learned counsel has further contended that the objection was raised in the written statement about taking place of any such partition and sanctioning of mutation. Although, respondent no. 1 has taken time of almost three years, but it was for the reason that he was to verify the fact of partition due to which delay occurred. The learned counsel has further contended that it is very difficult to obtain complete and entire information from revenue officials and sometimes proper documents are not given and mistakes are committed. After obtaining correct record, the amendment application was moved. The learned counsel has further contended that when the application for amendment was moved, till then no issue had been framed.

I have considered the rival contentions of learned counsel for the parties.

So far as the contention of learned counsel for the petitioner that relief claimed is time barred, is concerned, this is a mixed question of fact and law. It can be decided by the trial Court and the petitioner will be at liberty to raise this objection in his amended written statement. So far as the contention of learned counsel for the petitioner with regard to the forgery is concerned, this Court cannot go into the merits of the case, at this stage. However, if the petitioner feels aggrieved by the allegedly forged jamabandi for the year 2001-02, he will be at liberty to move the competent court in accordance with law. From the perusal of record, it is clear that when the application for amendment was moved, the trail had not commenced. Perusal of agreement to sell reveals that the land in question which was earlier mentioned in the plaint was also part of the land which is now being added. However, the suit was only filed to some extent of land which plaintiff intended to take and the same is based on the agreement to sell dated 09.07.2002. The additional land which was the part of the agreement, has to be mentioned in the plaint.

For the reasons given above, I do not find any illegality or perversity in the impugned order dated 04.03.2011 (Annexure P-3). Dismissed.