Jagtar Singh vs Rajinder Kumar

L.N. Mittal, J.

CM No. 9243-CII of 2012

Allowed as prayed for.

Main Case

Jagtar Singh-defendant has filed this revision petition under Article 227 of the Constitution of India to assail order dated 01.03.2012 Annexure P-3 passed by learned Civil Judge (Junior Division), Faridkot thereby dismissing application Annexure P-1 moved by defendant-petitioner for amendment of written statement. Respondent-plaintiff Rajinder Kumar has filed suit against defendant-petitioner for specific performance of agreement to sell dated 10.11.2005. Defendant-petitioner in his written statement admitted the execution of the said agreement but pleaded that plaintiff-respondent himself was not ready and willing to perform his part of the contract. The plaintiff has led his affirmative evidence. Thereafter the case was fixed for evidence of defendant-petitioner and he was granted many opportunities including many last opportunities for his evidence and thereafter defendant-petitioner moved application Annexure P-1 for amendment of written statement.

By way of amendment, the defendant-petitioner wants to take somersault by pleading that the impugned agreement as well as preceding agreement dated 29.11.2002 were executed as security for loan taken by defendant from plaintiff and by the said agreements, the defendant never intended to sell the suit property. Some other pleas are also sought to be taken.

Plaintiff-respondent resisted the amendment application by filing reply Annexure P-2.

Learned trial Court vide impugned order Annexure P-3 dismissed the amendment application moved by defendant-petitioner who has, therefore, filed this revision petition to challenge the said order.

I have heard learned counsel for the petitioner and perused the case file.

As noticed hereinbefore, amendment application was moved long after commencement of trial of the suit. According to proviso to Order 6 Rule 17 of the Code of Civil Procedure, amendment of pleading cannot allowed after commencement of trial unless the party seeking amendment could not raise the matter before the commencement of trial in spite of due diligence. In the instant case, the defendant is an Advocate himself. He had been practicing in the Courts for a long period. It cannot be said that the plea sought to be taken by amendment could not have been taken by him before commencement of trial after exercise of due diligence. Consequently proposed amendment of written statement has been rightly declined.

In addition to the aforesaid, by way of amendment, the defendant wants to withdraw the admission made in the original written statement and wants to completely change his stand. According to original written statement, the defendant had agreed to sell the suit property and was ready and willing to execute the sale deed as per agreement, but plaintiff-respondent himself was not ready and willing to perform his part of the contract. However, by way of amendment, the defendant wants to inter alia plead that he never intended to sell the suit property and the impugned agreement was executed only as security. Such amendment cannot be allowed. It would cause serious prejudice to the case of respondent-plaintiff. For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial Court does not suffer from any infirmity, much less perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine.