Madanjit Singh vs Gursanjogat Singh

L.N. Mittal, J.—Defendant-Madanjit Singh has filed this revision petition under Article 227 of the Constitution of India, impugning order dated 15.07.2013 Annexure P-5 passed by the trial Court thereby dismissing application Annexure P-3 filed by defendant for amendment of written statement Annexure P-2. Respondent-plaintiff Gursanjogat Singh, who is brother of defendant-petitioner, has filed suit vide plaint Annexure P-1 alleging inter alia that there is disputed tubewell connection installed in land of khasra No. 7/27(2-0) and the said connection was previously in the name of father of the parties. The defendant in corresponding para of his written statement admitted this fact. In amendment application Annexure P-3, the defendant alleged that due to typographical error, the aforesaid admission has been made and the word ''not'' was omitted in the written statement. By way of amendment of the written statement, the defendant wants to deny the aforesaid fact. The plaintiff by filing reply Annexure P-4 controverted the averments made in the amendment application. Learned trial Court vide impugned order Annexure P-5 has dismissed the application of defendant for amendment of written statement. Feeling aggrieved, defendant has filed this revision petition to assail the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that only typographical error in the written statement is sought to be corrected by amendment and therefore, proposed amendment should be allowed, notwithstanding that it has been sought after commencement of trial. Reference was made to preliminary objection of the written statement to contend that the existence of the connection has been denied therein.

I have carefully considered the matter. The aforesaid contention cannot be accepted. The proposed amendment is not being sought to rectify typographical error. On the other hand, there is categorical admission in paragraph 1 on merits of written statement regarding installation of the disputed tubewell connection in the aforesaid khasra number in the name of father of the parties. Even in preliminary objection No. 1, it has been admitted that the connection was in the name of father of the parties. Consequently, by amendment of written statement, the defendant cannot be permitted to withdraw the aforesaid admission.

In the aforesaid context, it is significant to notice that even while filing application for temporary injunction, the aforesaid admission of the defendant was taken into consideration. If there was any such typographical error in the written statement, the same came to the pointed notice of defendant at that stage and rectification thereof could be sought at that stage. On the other hand, instant amendment application was moved after commencement of trial. In view of proviso to Order 6 Rule 17 of the CPC also, the proposed amendment of written statement cannot be allowed having been sought after commencement of trial because it cannot be said that in spite of exercise of due diligence, proposed amendment could not have been sought before commencement of trial. For the reasons aforesaid, I find that proposed amendment of written statement has been rightly declined by the trial Court. There is no infirmity, much less perversity, illegality or jurisdictional error in the impugned order of the trial Court warranting interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is devoid of merit and is accordingly dismissed in limine.