Mahla Singh vs Hans Raj

L.N. Mittal, J.

CM No. 32038.CII of 2010

Allowed as prayed for.

CR No. 8218 of 2010

Defendant Mahla Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to impugn order dated 27.10.2010, Annexure P/4 passed by learned Additional Civil Judge (Senior Division), Jalalabad (West) thereby dismissing application Annexure P/2 moved by the Defendant-Petitioner for amendment of written statement.

Respondent - Plaintiff Hans Raj has filed suit for possession of suit property by specific performance of agreement to sell dated 3.7.2003 allegedly executed by Defendant in favour of the Plaintiff. The Defendant in his written statement has has denied the said agreement and has alleged that Plaintiff is not known to the Defendant. By way of amendment, the Defendant wants to introduce a new story that his wife had litigation with her brother regarding inheritance of their father and for meeting the litigation expenses the Defendant borrowed some amount from one Hakam Chand who had taken the said money from his Commission Agent Des Raj. Ultimately, Defendant''s wife executed a registered sale deed in favour of Hakam Chand to liquidate said debt. However, blank papers bearing thumb impressions of the Defendant which had been obtained at the time of obtaining loan were not returned by Hakam Chand and Des Raj. These pleas are sought to be taken by amendment along with some other pleas.

I have heard learned Counsel for the Petitioner and perused the case file.

Learned Counsel for the Petitioner contended that the Petitioner came to know of the omission in the written statement while discussing the case with his Advocate. The contention is not sufficient to permit the amendment of the written statement at this belated stage. The suit was filed on 16.4.2004. Even written statement was filed on 10.9.2004. However, amendment application was moved on 3.2.2010 i.e. 51/2 years after the filing of the written statement. The Defendant at this highly belated stage wants to set up completely new case which cannot be permitted. The Plaintiff has already led his evidence. He or his witnesses were not cross-examined on the pleas which are now sought to be taken. If these pleas had been omitted in the original written statement without notice of the Defendant, atleast these pleas would have been put to Plaintiff and his witnesses in their cross-examination. Plaintiff''s evidence already stands concluded. Thus, trial has not only commenced but has progressed to an advance stage. Consequently, in view of mandatory provision of priviso to Order 6 Rule 17 CPC, the proposed amendment cannot be allowed.

For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned order of the trial court. There is no merit in the revision petition which is accordingly dismissed.