Jagsir Singh vs Harnek Singh

Ashok Bhan, J.—This revision petition filed by the defendant-petitioner (hereinafter referred to as the petitioner) arises out of the following facts:

Plaintiff-respondent (hereinafter referred to as the respondent) filed a suit for declaration that the decree dated 7.10.1992 passed by the Sub Judge 1st Class is not binding upon him being collusive. It was also alleged that the decree had been obtained by fraud.

While respondent was leading his evidence, an application under Order 6 Rule 17 C.P.C was filed for amendment of the pleadings by specifically taking the plea of fraud and elaborating the said plea by giving particulars of fraud. This application was opposed by the petitioner before the trial Court on the ground that respondent could not be allowed to take the plea regarding fraud by way of amendment of the pleadings. This plea of the petitioner was rejected and the amendment sought by the respondent for amending the plaint was allowed aggrieved by which the present revision petition has been filed.

Counsel for the petitioner argued that respondent could not be allowed to amend his plaint for taking up the plea of fraud as plea of fraud would be totally contradictory to the earlier plea taken by the petitioner that the decree had been obtained by collusion between the parties. For this reliance has been placed upon Single Bench Judgment of this Court in Balwan v. Dharam Singh 1985 H.R.R. 505 and a judgment of the Supreme Court in Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, . Both these decision support the plea taken by the petitioner but in this particular case the plea regarding fraud had been taken in the original plaint. Office copy of the original plaint was produced before me. In the original plaint, it has been mentioned that the decree was forged and had been obtained by fraud. By the present amendment respondent has reiterated his plea of fraud and given further particulars of fraud. The plea regarding fraud is not being taken for the first time by way of amendment since the plea was already there and only particulars are being supplied regarding fraud. Trial Court has rightly allowed the amendment prayed for by the plaintiff-respondent specially when the case is at the initial stage. I find no infirmity in the order passed by the trial Court.

For the reasons recorded above, I find no merit in this revision petition, which is dismissed. No costs, Parties through their counsel are directed to appear before the trial Court on 15.3.1995.