Jasbir Kaur and another vs Paramjit Singh and others

L.N. Mittal, J.—By this common order, I am disposing of two revision petitions i.e. C. R. No. 6059 of 2009 and C. R. No. 6060 of 2009 - both titled Jasbir Kaur and another v. Paramjit Singh and others because both these revision petitions have arisen out of single suit and a single first appeal. Suit was filed by Gurdev Kaur - petitioner No. 2, Jasbir Singh - proforma respondent No. 22 (since deceased) and Jasbir Kaur - petitioner No. 1, who are widow, son and daughter respectively of Labh Singh (since deceased) against respondents No. 1 to 21 as defendants. The said suit was decreed by the trial court. Some of the defendants have filed first appeal against judgment and decree of the trial court.

During pendency of first appeal, defendants moved two applications - one for amendment of written statement and other for additional evidence. Learned lower appellate court, vide separate orders dated 01.09.2009, allowed both the said applications on payment of Rs. 10,000/- as cost for each application. Order Annexure P-3 regarding amendment of written statement is under challenge in C. R. No. 6059 of 2009, whereas order Annexure P-5 regarding additional evidence is under challenge in C. R. No. 6060 of 2009.

Plaintiffs, in paragraph 3 of the plaint, alleged that gift deed dated 29.11.1962, executed by Ajaib Singh - father of Labh Singh and Gurdial Singh (predecessor of plaintiffs and some of the defendants) in favour of grandsons was challenged by Labh Singh by filing a civil suit in the year 1963, decided on 09.01.1964. The said suit was decreed and the gift deed was cancelled and Labh Singh was declared to be owner of 111 kanals 03 marlas land being 1/3rd share of 333 kanals 10 marlas land. Copy of register of civil suits regarding the said suit and copy of mutation No. 70, sanctioned on the basis of said decree, were attached with the plaint.

Defendants, in the corresponding paragraph 3 of the written statement, on merits, admitted aforesaid paragraph 3 of the plaint as correct.

By way of amendment of written statement, defendants want to withdraw the aforesaid admission and want to plead that in the aforesaid suit instituted in the year 1963 and decided on 09.01.1964, gift deed dated 29.11.1962 was not cancelled, although Labh Singh - plaintiff in the said suit was declared owner of 111 kanals 03 marlas land being 1/3rd share of 333 kanals 10 marlas land. By way of additional evidence, the defendants want to produce copy of entry made in the register of civil suits pertaining to the aforesaid suit of 1963, whereas file of the said suit got destroyed in fire incident in the record-room.

Both the aforesaid applications have been allowed by learned lower appellate court vide separate orders, which are under challenge in these revision petitions.

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

Counsel for the petitioners contended that it was specifically pleaded in the plaint that civil suit filed by Labh Singh (predecessor of plaintiffs) challenging the gift deed was decreed and the said gift deed was cancelled and this fact has been admitted in the written statement, and therefore, by amendment, the defendants could not be permitted to withdraw the said admission. It was also contended that in view of amended provision of Order 6 Rule 17 of the CPC (in short - CPC), amendment of pleading cannot be allowed after commencement of trial, unless the party seeking amendment could not raise the matter before commencement of trial in spite of due diligence. It was argued that in the instant case, the defendants, having knowledge of the civil suit of 1963, decided on 09.01.1964, could certainly raise the plea, sought to be taken by amendment, at the initial stage itself by exercise of due diligence, and therefore, proposed amendment of written statement could not be allowed in first appeal as amendment could not be allowed after commencement of trial, whereas in the instant case, amendment was sought after final decision of the suit by trial court and more than two years after the filing of the first appeal, and therefore, proposed amendment could not be allowed. For the same reason, proposed additional evidence could not be allowed, particularly being contrary to the pleadings.

On the other hand, counsel for respondents contended that even admission made in the pleadings can be explained by amendment. Reliance in support of this contention has been placed on two judgments of Hon''ble Supreme Court namely Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. reported as 2007 (2) RCR (Civil) 830 and Sushil Kumar Jain v. Manoj Kumar and another reported as 2010 (1) Civil Court Cases 0446. It was submitted that proposed amendment of written statement has been rightly allowed, and therefore, proposed additional evidence has also been rightly allowed.

I have carefully considered the rival contentions.

In view of amended provision of Order 6 Rule 17 CPC, proposed amendment of written statement could not be allowed because by exercise of due diligence, defendants could certainly take the said plea before commencement of trial. Civil suit of 1963, decided on 09.01.1964 was specifically pleaded in the plaint, and therefore, defendants cannot plead ignorance of the said suit and its result. Nothing therefore prevented the defendants from taking the plea in the original written statement, which is now sought to be taken by amendment thereof. Proposed amendment was sought after final decision of the suit by the trial court and two years after the filing of the first appeal. Consequently, the said amendment of written statement could not be allowed, at this stage.

In addition to the aforesaid, defendants, by amendment, could not be permitted to withdraw the categorical admission made in the original written statement. Judgments in the cases of Usha Balashaheb Swami and Sushil Kumar Jain (supra) do not help the defendants because according to the ratio of law laid down in these judgments, admission can be explained by amendment of pleading. However, it was not laid down in these judgments that admission can be withdrawn by amendment of pleadings. In the instant case, defendants, by amendment of written statement, do not want to explain the admission made in the original written statement, but want to withdraw the said categorical admission. This is not permissible by amendment.

For the reasons aforesaid, it becomes manifest that the impugned order of the lower appellate court, permitting proposed amendment of written statement, is patently perverse and illegal and suffers from jurisdictional error. Lower appellate court has exercised jurisdiction, which did not vest in it to allow proposed amendment of written statement. Consequently, order (Annexure P-3) impugned in C. R. No. 6059 of 2009 is not sustainable and is liable to be set aside.

For the same reasons, order (Annexure P-5) impugned in C. R. No. 6060 of 2009, permitting additional evidence to the defendants, also suffers from the same infirmities of perversity, illegality and jurisdictional error. Moreover, the said additional evidence is contrary to the pleadings and for this reason also, the same could not be permitted. The said order is also, therefore, liable to be set aside. In view of the aforesaid, both the instant revision petitions are allowed and both orders dated 01.09.2009 passed by the lower appellate court, permitting the defendants to amend their written statement and to lead additional evidence, are set aside and defendants'' applications for amendment of written statement and for additional evidence stand dismissed.