Kamaljit Singh vs Swarn Arora and Another

Swatanter Kumar, J.—The present revision is directed against the order of the learned Civil Judge (Senior Division), Jalandhar dated 13.1.1998 whereby the learned trial court dismissed the application filed by the plaintiff-application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure.

The necessary facts are :- that Amrik Singh deceased filed a suit for specific performance of the agreement dated 22.6.1988, staled to have been executed by one Shri R.S. Arora, on behalf of the defendants. In the plaint, it was averred that Rs. 10,000/- was paid as earnest money and the remaining sale consideration was to be paid in the office of the Sub Registrar at the time of execution of the sale deed. The sale deed was to be executed on or before 30th October, 1988. The plaintiff claimed part performance as possession was given to him on 25lh September, 1988. According to him, he got installed electric meter and also installed water pump etc. on the property in question. The suit was contested by the defendants, who had denied the receipt of the amount and had raised various preliminary objections.

During the pendency of the suit, the plaintiff filed an application for the following amendment in the plaint.

"Defendants No. 1 and 2 signed the said agreement dated 22.6.1988 at their residence, 915, Panchkula, on behalf of Shri R.S. Arora since he himself was admitted in PIG at that time." And further, the plaintiff wanted to add in sub-para (b) of para 2 that "Out of the said amount of Rs. 10,000/- the plaintiff gave Rs. 5,000/- through a cheque bearing No. T-80298 dated 22.6.1988, drawn on the Slate Bank of India Main Branch, Jalandhar City, in the name of Sanjiv Arora."

The above prayer for amendment was contested by the defendants who stated that not only the plaintiff was trying to withdraw his admission but was totally altering his pleaded stand. It was argued that the evidence of the plaintiff has been over and all the material witnesses of the plaintiff have already been examined at length and now the applicant-plaintiff is trying to fill up the lueana which has come in the cross-examination. The amendment, if allowed, would frustrate the entire trial to the prejudice of the defendants- As already noticed the learned trial court rejected the application for amendment vide impugned order giving rise to the present revision.

Learned trial court has passed a well reasoned order. It is no doubt that the present trend in law relating to amendment of the pleadings is more titled in favour of allowing the amendment rather than rejecting the same. However, in this trend it is only the discretion which must be exercised in consonance with the well enunciated principles and limitations imposed thereupon. Well defined equitable principles for exercise of judicial discretion necessitates that no party should take advantage of its own wrong and must not be permitted to lake the other side by surprise and more particularly upon conclusion of the evidence. The plaint had been filed by Amrik Singh (since deceased) while the present application for amendment has been filed by his son Kamaljit Singh who is legal representative of Amrik Singh. The proposed amendment if allowed would not only permit the applicant to withdraw admission which have been made on record over a considerable period including the evidence but would also entirely change the very foundation of the case of the plaintiff. This is bound to result in serious prejudice to the rights of the defendants. In given circumstances, a party can be permitted to explain his admission already made by the facts which may apparently appear to withdraw the admission; but once it materially alters the basic case of the applicant and causes serious prejudice to the non-applicant in that even withdrawal of admission may not be possible to be permitted. The very place of execution of agreement is sought to be changed. The mode of payment which had been specifically pleaded and proved by the plaintiff on record is also sought to be completely altered.

I find substance in the contention of the counsel for the respondents herein that it was after the witnesses of the plaintiff cross-examined and some patent lacuna could be brought on record that the plaintiff is attempting to fill up those lacunae by completely altering this basic case. The defendants has to meet the case pleaded in the plaint and complete alteration of the basic case would normally not permissible unless it is absolutely essential, just, fair and equitable for completely and finally determining the controversy between the parties pending before the Court. The present case certainly does not fall in that category. Amrik Singh had taken definite stand that agreement was executed at Jalandhar and a sum of Rs. 10,000/- was paid in cash. Now the legal representative of Amrik Singh cannot be permitted to alter the basic pleadings in regard to place of execution of agreement as well as in regard to the payment made at that juncture. Now the proposed amendment, in fact, is even contrary to exhibit P.1 which is the agreement dated 22.6.1988. Should the plaintiff be allowed to lake advantage at this late stage of his own wrong and errors and should the plaintiff be permitted to alter his case to the prejudice of the defendants? Both these questions must be answered in the negative keeping in view the facts and circumstances and the equities.

For the reasons aforestated, I find no jurisdiction error apparent on the face of record in the impugned order. Consequently, this revision petition is dismissed with out any orders as to costs.