Jagtar Singh vs Gurjeet Singh and others

L.N. Mittal, J.—Jagtar Singh - defendant No. 3 in the trial court and appellant before the lower appellate court has filed this revision petition under Article 227 of the Constitution of India impugning order dated 08.02.2011, passed by learned Additional District Judge, Ludhiana, thereby dismissing application (Annexure P-1) moved by the appellant-petitioner for amendment of written statement. Suit filed by respondent No. 1-plaintiff Gurjeet Singh against respondents No. 2 to 4 herein and against the petitioner herein has been decreed by the trial court vide judgment and decree dated 06.03.2010. Jagtar Singh - defendant No. 3 has filed first appeal against judgment and decree of the trial court. During pendency of the said appeal, appellant filed application (Annexure P-1) for amendment of written statement alleging that the plaintiff Gurjeet Singh had earlier instituted a suit for permanent injunction against Malkiat Singh etc., to which present petitioner was party as defendant No. 4, but the present petitioner at the time of filing of his written statement in the trial court, was not aware of the said suit filed in June 2002 and decided on 15.06.2002 within nine days of its institution. In that suit, Mr. Rishi Raj Kalia, Advocate put in appearance on behalf of present petitioner Jagtar Singh, but Vakalatnama in favour of said Advocate was not signed by the present petitioner and his alleged signatures thereon were forged. The petitioner, therefore, filed criminal complaint against Gurjeet Singh - plaintiff for various offences. All these facts are sought to be pleaded by amendment of written statement.

Respondent No. 1-plaintiff opposed the amendment application alleging that the petitioner-appellant filed criminal complaint on 29.01.2011 to create evidence for filing amendment application on 01.02.2011. It was also pleaded that appellant-petitioner Jagtar Singh had filed a revenue appeal, which was decided on 31.05.2007. In that case, copy of the injunction suit was also filed. The said revenue appeal was decided on 31.05.2007 based on said order of the Civil Court. Consequently, the petitioner-appellant was aware of the said injunction suit and proposed amendment of written statement cannot be allowed at this belated stage.

Learned lower appellate court, vide impugned order dated 08.02.2011, dismissed the amendment application moved by the appellant, who has, therefore, filed this revision petition to challenge the said order.

I have heard Learned Counsel for the parties and perused the case file.

Counsel for the petitioner contended that the facts, now sought to be pleaded by amendment of written statement, came to the knowledge of the petitioner at the stage of evidence during trial of the suit and were not in the knowledge of the petitioner at the time of filing of written statement by him in the trial court, and therefore, proposed amendment should be allowed. It was also contended that proposed amendment of written statement cannot be disallowed merely on the ground of delay. Reliance in support of this contention has been placed on judgments of Hon''ble Supreme Court namely Surender Kumar Sharma vs. Makhan Singh reported as (2010) PLR 231, North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (D) By L.Rs. reported as 2008 (3) RCR (Civil) 165, B.K.N. Narayana Pillai Vs. P. Pillai and Another, and Pandit Ishwardas Vs. State of Madhya Pradesh and Others,

On the other hand, counsel for respondent No. 1-plaintiff contended that the appellant-petitioner was aware of the injunction suit since beginning. His father and brothers were also party to the said suit and there is no allegation that they were also impersonated in the said injunction suit. It was also pointed out that judgment of the said suit was produced in revenue appeal preferred by the petitioner himself, which was decided on 31.05.2007 and thus, prior to 31.05.2007, petitioner became aware of the said injunction suit. Instant suit was decided by the trial court on 06.03.2010 i.e. almost three years thereafter. First appeal was filed on 15.04.2010, whereas amendment application was moved on 01.02.2011 and criminal complaint was instituted immediately prior to it on 29.01.2011 to create ground for moving the application depicting mala fide intention of the petitioner. It was also contended that in view of amended provision of Order 6 Rule 17 of the CPC (in short - CPC), amendment of written statement cannot be allowed after commencement of trial. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in the case of P.A. Jayalakshmi vs. H. Saradha and others reported as 2011 (6) RCR (Civil) 224.

I have carefully considered the rival contentions.

The instant suit was instituted on 20.05.2003 i.e. after amended provision of Order 6 Rule 17 CPC came into force in July 2002. Consequently, the said amended provision is applicable to the instant lis. As per said provision of Order 6 Rule 17 CPC, amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not raise the matter prior to commencement of trial in spite of due diligence. In the instant case, petitioner is seeking amendment of written statement in first appeal i.e. not only after commencement of trial of the suit, but even after final decision of the suit and in fact, after more than nine months of the filing of the first appeal. Petitioner himself mentioned in the amendment application that facts sought to be pleaded by amendment came to his notice during pendency of the suit at the stage of evidence, although the petitioner avoided to state the specific date, when the said facts came to his knowledge. However, even when these facts came to his knowledge at the stage of evidence of the plaintiff, the petitioner did not seek amendment of written statement at that stage. The injunction suit was in the knowledge of the petitioner prior to 31.05.2007, when his revenue appeal was decided because in that appeal, judgment of the injunction suit was produced. Amendment of written statement was not sought even at that stage. Even otherwise, father and brothers of petitioner were also party to the injunction suit. Petitioner''s father even appeared in person in the said suit to make statement admitting the claim of the plaintiff regarding his possession over the suit land. The said fact is not disputed by the petitioner. Consequently, it cannot be said that the petitioner was not aware of the said suit. On the contrary, the aforesaid fact reveals that the petitioner was aware of the said suit since inception.

Keeping in view all the aforesaid circumstances, amendment of written statement cannot be allowed at the stage of first appeal in view of amended provision of Order 6 Rule 17 CPC. Judgments in the cases of Surender Kumar Sharma (supra), North Eastern Railway Administration (supra), B.K. Narayana Pillai (supra) and Pandit Ishwardas (supra), cited by counsel for the petitioner, are not applicable because these judgments do not relate to amended provision of Order 6 Rule 17 CPC. For the reasons aforesaid, I find that amendment of written statement, sought by the petitioner-appellant, has been rightly declined by the lower appellate court. There is no infirmity, much less illegality, perversity or jurisdictional error in the impugned order of the lower appellate court so as to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is thus found to be devoid of substance and is, therefore, dismissed.