Kawaljit Singh and Others vs Harbhajan Singh and Others

Kamlesh Sharma, J.—Petitioners Defendants are successors-in- interest of late Kartar Singh Duggal and Respondents-Plaintiffs are the successors-in-interest of late Mool Singh. Respondents- Plaintiffs filed civil suit for specific performance of agreement dated 10-1-1958 whereby late Kartar Singh Duggal had agreed to sell the property to late Mool Singh bearing evacuee No. 131/A, measuring 2534 Sq. yards situated in Garden View, Cart Road, Shimla, for a total consideration of Rs. 4,837/ Bannas out of which an amount of Rs. 2500/- was paid as earnest money.

The Petitioners-Defendants resisted the suit on the ground that the agreement was illegal, void and inoperative. According to them, it was an act of undue influence, mis-representation of fact and fraud. Petitioners, who were Defendants No. 1 to 4, including Avtar Singh Duggal son of Kartar Singh Duggal, who has since died, took up the stand in paragraph-3 of their written statement that sale consideration as claimed by the Plaintiffs is not just and equitable and no such payment was made to late Kartar Singh Duggal towards sale consideration. It is also pointed out that late Kartar Singh Duggal could not enter into an agreement for sale as he himself was not the owner at the time of execution of the said agreement. According to them, the plaintifts being non-agriculturists were not eligible to acquire the suit property in the State of Himachal Pradesh. Similarly, the Petitioners, who were Defendants No. 5 to 7 in the suit, raised one of the prelimi nary objections besides Ors. that the agreement to sell was void for uncertainty and its enforcement would be against public policy and law. Even if it is proved to have been executed it is highly unfair and oppressive. The plea of delay and (aches was also taken as Kartar Singh Duggal has died in 1970 whereas the sait was brought in 1987. In reply to Paragraph-3 of their written statement it is stated that, "In action on the part of Shri Mool Singh is also a strong circumstance to infer that there was no agreement and even if there was any, the same was ob trained by him by deceiptful means and mis-representation." Therefore, from the perusal to the written statement it is clear that the Petitioners-Defendants have not denied the execution of the agreement to sell and have not taken the stand that it does not bear the signatures of tate Kartar Singh though the photocopy of agreement to sell as filed along with plaint which bears the signatures of late Kartar Singh Duggal as well as his son the original Defendant No. 2 Avtar Singh Duggal.

Admittedly, the trial of the suit is at the final stage and the Petitioners- Defendants closed evidence on 4-7-1995. Thereafter, they filed an application for additional evidence under Order 18 Rule 17 CPC which was dismissed on 8-4-1996 and the Civil Revision preferred by them in this Court was withdrawn on 7-11-1996. The Petitioners Defendants also filed further application under Order 6 Rule 17 CPC for amendment of the written statement to specifically deny the execution of the agreement to sell by late Kantar Singh Duggal in favour of late Mool Singh and to take the plea that the document of agreement to sell appears to be forged with an ulterior motive to grab their prc''perty as it does not bear the signatures of late Kartar Singh Duggal. The reason for moving such an application at such a late stage was that they were not conversant with the signatures of late Kartar Singh Duggal and had come to know the same when one of them had inspected me records of Rehabilitation Department on 25th July, 1995, in order to move the ap plication for obtaining certified copies of some documents to be filed along with their application for additional evidence under Order 18 Rule 17 CPC The said application for amendment of written statement under order 6 Rule 17 CPC was dismissed on 12-3-1997. Hence, the present revision petition.

This Court has t learned Counsel for the parties and gone through the record. No doubt, the Court has very wide powers in allowing the amendment of pleadings if such amendments are necessary for the purpose of determining the real question in controversy between the parties and in the case of written statements, It Courts are very liberal in allowing the amendment yet at the same time such amendment of pleadings cannot be allowed as to change the very nature of the case by introducing altogether a new cause of action or the subject matter of the contfroversy in Suit. It is permissible to a party to take alternative or consistent pleas and either to withdraw or explain its admission originally made but it cannot completely change the nature of their original pleadings by introducing altogether a new case by way of amendment. See Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., , Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co., and Bansi La! Ganpat Rai v. Bhoj Raj and Anr. AIR 1980 HP 39. So far, the case in hand is concerned, no doubt by way of amendment only an alternative plea is intended to be taken that the agree ment to sell was not executed as it does not bear the signatures of late Kartar Slngh, which was not specifically taken the first instance and it would have been allowed in the normal course but being mala fide and preferred when the suit is at the final stage of argument after protracted trial for about 10 years it has rightly been rejected by the trial Court. It does not lie in the mouth of Petitioners Defen dants that they were not conversant with the signatures of late Kartar Singh ho was their father/grand father and they could not verify his signatures before 25th July, 1995 when one of them inspected the records of Rehabilitation Department wherein they found the signatures of late Kartar Singh. It is not in dispute that a photocopy of agreement to sell was already filed by the Respondents-Plaintiffs along with their plaint which bore the signatures of late Kartar Singh Duggal as well as original Defendant No. 4 Avtar Singh Duggal yet in the written statement filed by original Defendants No. 1 to 4 the stand was not taken that the agreement to sell in question was not executed and the signatures thereon are not of late Kartar Sirigh Duggal. At least original Defendant No. 4 Avtar Singh Duggal who was present at the time of execution and had signed the agreement to sell could take this plea. Even when one of the Respondents-Plaintiffs appeared as PW-i and stated that the agreement to sell was signed by later Kartar Singh Duggal and Avtar Singh Duggal he was not cross-examined that singatures were not of late Kartar Singh Duggal and Avtar Singh Duggal. Similarly, witnesses PW-3 and PW-4 who identified the signatures of other witnesses to the agreement to sell were also not cross-examined to deny the signatures of late Kartar Singh Duggat and Avtar Singh Dug- gal. For the first time, this plea was taken when OW-i was examined on 4-7-1995. It may be pointed out that in the meantime Kartar Singh Duggal had also died, which also belies their averment in the application that they had verified the signatures of Kartar Singh Duggal from the record of Rehabilitations Department when one of them inspected it on 25-7-1995. It may be pointed that in the meantime Avtar Slngh Duggal was no more, who during his lifetime, neither denied his signatures nor that of late Kartar Singh Duggal, his father. Further the application for additional evidence under Order 18 Rule 17 CPC was dismissed on 8-4-1996. In this background, this Court has no hesitation to hold that the applications for amendment of written statement of Petitioners-Defendants are not bonafide and their only purpose is to delay the trial of the suit which is pending since 1987. Therefore, the trial Court has rightly rejected the application for amendment of written statement.

Learned Counsel appearing for the Petitioners-Plaintiffs has relied upon the judgment of this Court in Sh. Purshotam Dass and Anr. v. Smr. Shakuntla Devi and Ors. 1994 (2) Shim. L.C. 459 which reiterates the proposition that admission made by a party may be withdrawn and may be explained away, with which there is no dispute. Learned Counsel has also referred to a judgment of Supreme Court in Akshaya Restaurant Vs. P. Anjanappa and Another, wherein the learned Judges have again reiterated that admission in the pleadings can be explained and inconsistent pleas can be taken in amendment periton which is also a settled proposition of law but the ratio of these judgments are not applicable to the facts and circumstances of the present case as discussed hereinabove. The learned Counsel referring to Anr. judgment of this Court in Han Dass and Ors. v. Kali Dass 1979 Shim. LC. 157 has further submitted mat while considering the application for amendment the Court is not supposed to go into the alleged falsity of the case nor to give its findings on merits of amendment as has been done by the trial Court. There is no substance in this submission as the trial Court as well as this Court has considered the context in which the applications for amendment were filed to give its findings that these are not bona tide having been filed at t final stage of the trial which has been continued for the last more than 10 years.

In the result, there is no merit in this revision petition and it is rejected. No order as to costs.