Jaswinder and Others vs Barsar and Others

Dr. Bharat Bhushan Parsoon, J.�Litigation with respect to land situated in two revenue estates viz. village Takhani and Chak Gujran is pending adjudication between the parties. Barsar, respondent herein, as plaintiff before the lower court, has filed a suit against the petitioner-defendants and others for declaration to the effect that he is owner in joint possession of the land, detailed in the plaint, wherein decree of permanent injunction has also been sought against alienation of the land in suit. Petitioner-defendants at the time of filing, of the written statements, failed to make mention of land pertaining to village Chak Gujran and also failed to claim ownership of land mutated in the name of Smt. Shanti, alleged to be inherited from Kartar Chand her son who has predeceased his mother Smt. Shanti.

In the amendment of counter claim sought by the defendant, petitioners herein, mention about land of village Chak Gujran is sought to be introduced in addition to furnishing an explanation as to how land of Kartar Chand (pre-deceased son of Smt. Shanti of village Takhani) by way of Will dated 24.1.1985 from Smt. Shanti had also come to them. Consequential changes in the written statement were also sought to be made. This application for amendment of the counter claim of the defendants was hotly contested by the plaintiff, respondents herein. Their claim is that Will dated 24.1.1985 is fabricated one.

Merits of the pleadings sought to be introduced by way of amendment in the written statement cannot be gone into at this stage. Even comparative evaluation of merits of substance in pleadings of both the parties, is legally not permissible at the time of deciding the application for amendment of the pleadings.

During hearing, Counsel for the respondent-plaintiffs has vehemently argued that amendment of pleadings at a belated stage is not permissible. On the contrary, ''learned Counsel for the petitioner-defendants, referring to Sushil Kumar Jain Vs. Manoj Kumar and Another, has urged that interpreting proviso to Order VI Rule 17 CPC added subsequently, Hon''ble Apex Court had explained that the proviso must be understood in the limited sense of meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. Referring to yet another decision viz., Surender Kumar Sharma Vs. Makhan Singh, , it is urged that amendment sought even at belated stage cannot be refused if it is found that the same was required for deciding real controversy between the parties and delay can be compensated on payment of costs.

Referring to Sagar Singh Slathia Vs. Surinder Pal Singh, , it is claimed that in the case of amendment of a written statement, the courts are rather comparatively liberal in allowing an amendment than amendment in the plaint as the question of prejudice would be far less in the former than in the latter case. Undoubtedly, the law has gone much ahead as was also explained in this authority that even an admission can be explained and inconsistent pleas can be taken on amendment even after taking a definite stand in the written statement. Referring to Ujjagar Singh and Others Vs. Mann Singh and Others, , it is contended that mere delay in filing application for amendment cannot be a circumstance to decline such prayer.

After hearing Counsel for the parties, the only question which emerges for answer is as to whether the amendment in the counter claim sought by the applicant-defendants is necessary?

When entire spectrum of facts of the suit in relation to this question is evaluated, it emerges out that without this amendment in the counter claim filed by the petitioner-defendants, the suit cannot be completely and effectively decided and thus the amendment is essential.

Looking from another angle, the suit in fact involves inheritance and in terms of Article 65 of the Limitation Act, 1963 for a suit for possession based on inheritance, there is no limitation and the counter claim by the defendants is to be decided like a suit. Bar of limitation also is not an impediment.

Consequently, to avoid multiplicity and proliferation of litigation further and with a view to bring an end to all the disputes among the parties regarding inheritance, amendment in the counter claim being of essential nature, was required to be allowed and was wrongly and illegally refused. Accepting this revision petition, the impugned order is set aside. Consequently, application of the petitioner-defendants for amending the counter claim is allowed.

The petition stands disposed of accordingly.