Kuldeep Singh vs Rajinder Singh

Rajesh Bindal, J.—Challenge in the present petition is to the order dated 12.5.2011, passed by the learned court below, whereby the application for amendment of the written statement filed by him, was dismissed. Briefly, the facts of the case are that the respondent-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 1.3.2007. The suit was filed on 27.5.2008. After the written statement was filed and the respondent-plaintiff had led part of the evidence, the application in question was filed by the petitioner-defendant seeking to amend the written statement to add the plea that in fact the property in dispute is ancestral and co-parcenary and the petitioner-defendant did not have any right to alienate, transfer or mortgage any part thereof. The application having been rejected, the petitioner-defendant is before this court.

Learned counsel for the petitioner-defendant submitted that the learned court below has gone wrong in dismissing the application filed by the petitioner for amendment of the written statement while considering the merits of the controversy, which was not required to be considered at that stage. The court was only to consider as to whether the amendment is necessary for proper adjudication of the dispute. He further submitted that in the written statement initially filed or by way of amendment as well, the defendant is entitled to take inconsistent pleas. The law for amendment of written statement is quite liberal. The fact pertaining to the property in dispute being ancestral and co-parcenary was informed to the counsel who had filed the written statement earlier, but he failed to mention the same in the written statement. It was only with the change of counsel when the same was noticed, the application in question was filed. In case there is some lapse on the part of the counsel, it falls within the exception in Order 6 Rule 17 CPC for permitting the party to amend the pleadings even after commencement of the trial. In support of various contentions, reliance was placed upon Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., ; Andhra Bank Vs. ABN Amro Bank N.V. and Others, ; Usha Devi Vs. Rijwan Ahamd and Others, ; Chander Kanta Bansal Vs. Rajinder Singh Anand, Sagar Singh Slathia v. Surinder Pal Singh 2009(3) R.C.R. (Civil) 37 and Ramanand v. Sedhu and others 2010(2) R.C.R. (Civil) 31.

On the other hand, learned counsel for the respondent-plaintiff submitted that a vendor in the agreement to sell is not permitted to take a plea that he was not competent or entitled to hold the property in question being not the owner thereof or otherwise. Once legally such a plea cannot be taken by the petitioner-defendant, there is no question of permitting him to amend the pleadings for incorporating such a plea in the pleadings by way of amendment. In support of the pleadings sought to be taken in the amended written statement, no revenue record has been produced to show that the property in question is co-parcenary. In fact, the revenue record clearly shows that the petitioner-defendant is owner of the properly. No affidavit of the counsel, who filed the written statement earlier has been filed in support of the argument that the fact regarding the property being ancestral was disclosed to him and he failed to take the plea in the written statement initially filed. It is merely a story being put up with the change of counsel to defeat the legitimate right of the respondent. Since the application has been filed after commencement of trial as after initial filing of the written statement on 12.11.2008, where the plea was taken that the alleged agreement to sell is a forged document, substantial evidence had already been led by the respondent-plaintiff when the application in question was filed. The agreement to sell was executed by the petitioner-defendant on 1.3.2007. Last date for execution of the sale deed was 1.3.2008, which was extended upto 26.3.2008 vide endorsement dated 29.2.2008. Even subsequent thereto, vide endorsement dated 26.3.2008, the same was extended upto 23.4.2008. Still the sale deed having not been got registered by the petitioner-defendant, the suit was filed immediately thereafter on 27.5.2008. In support, reliance was placed upon Abdul Hakeem Khan Vs. Abdul Mannan Khadri, ; Deenanath Vs. Chunnilal, and Ganpat Singh Vs. Chand Mal and Another,

Heard learned counsel for the parties and perused the paper book.

The learned court below in the impugned order has noticed that in the written statement filed by the petitioner-defendant initially, a plea was taken that the alleged agreement to sell is a forged and fabricated document got prepared by the respondent-plaintiff in connivance with Rajinder Singh and alleged marginal witnesses signed on blank stamp papers. The same was without any consideration. The issues were framed on 22.5.2009. The respondent-plaintiff tendered affidavits of seven witnesses in his evidence. The petitioner-defendant instead of cross-examining the witnesses produced by the respondent-plaintiff, moved application for amendment of the written statement on 30.10.2010 seeking to take the plea that the suit property is ancestral and co-parcenary standing in the name of the petitioner-defendant and he had no right to alienate, transfer or mortgage any part thereof as he is not the exclusive owner of the said property. Further, all the members of joint Hindu family are dependent upon the income of the suit land for their livelihood. The petitioner-defendant did not have any right to part with the property without the consent of other co-parceners. The plea raised by learned counsel for the petitioner is that the aforesaid facts were disclosed by him to his counsel at the time of filing of the written statement, however, these were not incorporated in the written statement initially filed. The petitioner being rustic villager did not know about this fact. The learned court below instead of going into the merits of the controversy sought to be raised in the written statement should have merely considered the issue as to whether the amendment is necessary for proper adjudication of the dispute, whereas the primary contention raised by learned counsel for the respondent is that once the petitioner-vendor is not legally permitted to raise the plea regarding his being incompetent to sell the property in dispute, which he had agreed to sell to the respondent-plaintiff, no amendment in the written statement already to take that plea should be permitted as the same would be an exercise in futility. The plea regarding due diligence was also controverted.

Though learned counsel for the respondent had placed reliance upon the judgments of Andhra Pradesh and Rajasthan High Courts in Mir Abdul Hakeem Khan''s case (supra); Deenanath''s case (supra) and Ganpat Singh''s case (supra) in support of the plea that a vendor is not entitled to take defence in a suit for specific performance that he had no title in the property, however, no judgment of this court on the issue has been cited. This court would not like to enter into this arena at the interim stage of the proceedings to take a final view as to whether the vendor is entitled to take such a plea or not.

As for as amendment to the pleadings sought by the petitioner is concerned, this court finds support from the judgment in Sagar Singh Slathia''s case (supra), where under similar circumstances, plea for amendment of the written statement was allowed. In view of my aforesaid discussion, the present petition is allowed. The impugned order passed by the learned court below is set aside. The application for amendment of written statement is allowed. The same shall be subject to payment of Rs. 5,000/- as cost to be paid to the respondent by way of demand draft.