Ishwar Singh and others vs Sher Singh and others

Manmohan Singh Liberhan, J.—The short facts in this revision petition are, that the plaintiff-respondents filed a suit for pre emption on the ground that they are co-sharers in the khewat out out of which the land in dispute had been soud. The defendants dinied the plaintiffs, being co-sharers thus denied their right of pre-emption.

When the case was fixed for arguments, the defendants moved an application for amendment of the written statement inter alia praying that they may be permitted to take the defence that khewat in dispute was privately and orally partitioned about twenty years back and since then all the land owners are in separate possession of their holdings. This partition was acted upon and thereafter the owners are dealing with their respective shares as exclusive owners.

The plaintiffs opposed the proposed amendment and contended that the application for amendment is belated, false and vexatious. It is stated that the defendants have already admitted in evidence during trial that the partition proceedings are pending and have not been finally disposed of and hence the proposed amendment amount to withdrawal of an admission already made. It is further contended that the plea as also the issue on the point is already there and the defendants are at liberty to lead evidence with respect to the partition.

Learned counsel for the defendants-petitioners contends that so far as the amendment is concerned, no question of limitation arises and a new claim can be raised in the written statement. He has relied upon Daya Ram v. Puran Chand and another A.I.R 1974 P & H. 194, Gobinder Singh v. Mst. Rajo 1979 P.L.J. 10 and Ram Charan v. Shanti Sarup 1982 P.L.J. 302.

Learned counsel for the respondents controverts the said contention and contends that the amendment sought is belated and not bona fide. Apart from this, it amounts to withdrawal of the admission made by the defendant on oath, hence the same should not be allowed. I find force in the contention raised by the counsel for the respondents. The fact that admission has been made with respect to the pendency of the partition proceedings has not been controverted by the petitioners. In view of this fact that petitioners cannot be permitted to set up a case now that partition had already taken place orally twenty years back. The amendment sought does not appear to be bona fide and is only an attempt to delay the proceedings. The judgments cited by the counsel for the petitioners are neither pari materia on facts nor in law. There is no controversy in this case whether, the amendment can be allowed after expiry of limitation as no question of limitation arises. So far as Daya Ram v. Puran Chand''s case (supra) is concerned, the principal accepted is that a new defence can be raised by the defendant. There is no dispute with this proposition too but provided that amendment sought is bona fide. Apart from this, that was a case of permitting amendment by taking legal plea only which was considered as not known to the litigant. It was fair to permit such a legal plea to be taken even at a belated stage. It was further observed that by permitting amendment no prejudice is caused to the plaintiff. However, here, neither defence was unknown to defendant, nor it can be said that it will not cause prejudice to the plaintiffs.

In Ram Charan v. Shanti Sarup (supra), it was observed that plea arising during the pendency of the suit can be raised by way of amendment Herein no such contingency has arisen. The defendants by amendment want to set up an oral partition and further withdraw the admission already made which will result in great prejudice to the plain-tiffs and the plea does not appear to be bona fide.

In view of my above observations, the revision petition is dismissed. The cost shall be the costs in the cause. The parties to appear before the trial court on the date already fixed.