Nachhattar Singh and Others vs Darbara Singh and Another

L.N. Mittal, J.—Defendants No. 1 to 4 including legal representatives of defendants No. 2 and 4 have filed this revision petition under Article 227 of the Constitution of India assailing order dated 02.04.2010 Annexure P-7 passed by learned Additional District Judge, Ludhiana thereby dismissing application filed by petitioners for amendment of written statement during pendency of first appeal preferred by them. Suit was filed by respondent No. 1-Darbara Singh against petitioners and respondent No. 2-Manjit Singh as defendant No. 5 claiming joint possession of land measuring 1 bigha 4 biswas 10 biswans is pukhta equivalent to 3700 square yards out of khasra No. 384/17 measuring 2 bighas 5 biswas 15 biswansis pukhta along with ancillary relief of injunction etc. alleging that defendants No. 1 to 4 are in unauthorized possession of the suit land which fell to the share of the plaintiff in partition.

Suit of the plaintiff stands decreed by the trial Court vide judgment dated 20.04.2006 Annexure P-3. Petitioners have filed appeal against said judgment and consequent decree of the trial court. During pendency of the first appeal, defendants moved application Annexure P-6 for amendment of written statement. By way of amendment, the petitioners want to plead that plaintiff is neither owner nor in possession of the suit land and in fact Khasra No. 384/17 is non-existent. Besides it, Darbara Singh, present plaintiff and Banta Singh has filed Civil Suit No. 470 dated 24.11.1989 decided on 12.01.1996 to which Harbhajan Singh predecessor in interest of defendants No. 1 to 4 herein, was also party. The said suit was dismissed after hot contest and first appeal was also dismissed holding that Darbara Singh had failed to produce any document on the judicial file that prior to partition, he was in possession of khasra No. 384 out of which khasra No. 384/17 was bifurcated in partition. Other findings of the said suit are also sought to be pleaded. Consequent bar of res judicata is sought to be taken. Defence relating to provisions of Sections 121 and 122 of the Punjab Land Revenue Act is also sought to be raised. It is also to be pleaded that actual physical possession of the land in question was never given to any of the parties pursuant to partition and only symbolic possession was given. Plea of estoppel is also sought to be raised against the plaintiff on the basis of concealment of material facts.

Amendment application was opposed by the plaintiff.

Learned Additional District Judge, Ludhiana vide impugned order Annexure P-7 dismissed the petitioners'' application for amendment of written statement primarily on the ground of delay. Feeling aggrieved, petitioners have filed this revision petition.

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

Counsel for the petitioners vehemently contended that amendment of pleadings could not be declined merely on the ground of delay. It was submitted that law relating to amendment of pleadings is liberal and amendment of written statement is allowed more liberally than amendment of plaint.

On the other hand, counsel for respondent No. 1-plaintiff mainly sought to contend that pleas sought to be taken by proposed amendment of written statement are untenable on merits. It was also argued that previous suit filed by plaintiff and Banta Singh was suit for permanent injunction only and, therefore, any finding in that suit regarding title would not operate as res Judicata in subsequent suit. Reliance in support of this contention has been placed on judgment of this Court in the case of Randhir Singh and others v. Har Sarup and another,1 (2007-3)147 P.L.R. 574. It was also contended that there has been undue delay in seeking amendment of written statement because the suit itself remained pending in trial Court for more than seven years and even in first appeal, amendment application was moved after two years and thus there has been delay of nine years in seeking amendment of written statement.

I have carefully considered the rival contentions. Instant suit was instituted on 02.12.1997. Consequently amended provision of Order 6 Rule 17 of the CPC (in short, "CPC"). which prohibits amendment of pleadings after commencement of trial, is not applicable to the instant case because the said amended provision came into force w.e.f. 01.07.2002 and as per Amendment Act, the said amended provision is not applicable to suits which were already pending. Consequently the said amended provision is not applicable to the instant case.

Prior to enforcement of amended provision of Order 6 Rule 17 CPC, law of amendment of pleadings was very liberal and amendment was not declined merely on the ground of delay. In addition to it, amendment of written statement was allowed more liberally than amendment of plaint. Consequently, the lower appellate Court went wrong in declining amendment of written statement merely on the ground of delay. For the delay, the plaintiff could be compensated by way of cost. It is correct that proposed amendment of written statement would open almost de novo trial of the suit, but nevertheless the amendment could not be refused merely because there has been delay in seeking the amendment. For the long delay resulting in de novo trial, petitioners can be burdened with more heavy cost.

Judgment in the case of Randhir Singh (supra) has no applicability at this stage because only after amendment of written statement is allowed, it is to be seen whether the instant suit would be barred by res judicata or not. Merely by permitting amendment of written statement to take this plea, it is not being held as proved that the instant suit is barred by res judicata. On the contrary, after amendment of written statement is permitted, the petitioners have to establish this plea.

Counsel for respondent No. 1 also contended that Harbhajan Singh having sold the suit land to defendants No. 1 to 4 during pendency of the aforesaid previous suit, would not have continued to hotly contest the said suit. However, this contention is based only on speculation and conjectures. Only Harbhajan Singh would know as to why he continued to contest the said previous suit even after sale of suit land by him to defendants No. 1 to 4. However, the fact remains that the said previous suit was pending when sale deeds in question were executed by Harbhajan Singh and his wife Manjit Kaur in favour of defendants No. 1 to 4. It may be mentioned that defendants No. 1 to 4 herein being themselves not party to the previous suit, might not be aware of the said suit at the initial stage, particularly because the same was also not disclosed by Harbhajan Singh and his wife in the sale deeds executed in favour of defendants No. 1 to 4, and so possibly they could not take the pleas at initial stage, which are now sought to be taken by amendment.

In view of the aforesaid, I am of the considered opinion that proposed amendment of written statement should be allowed on payment of heavy cost. Impugned order of the lower appellate Court refusing amendment of written statement merely on the ground of delay is erroneous, perverse and illegal and suffers from jurisdictional error because the lower appellate court refused to exercise jurisdiction which vested in it to permit proposed amendment of written statement. As a necessary consequence of the discussion aforesaid, the instant revision petition is allowed. Impugned order Annexure P-7 passed by lower appellate Court is set aside. Amendment application Annexure P-6 moved by petitioners for amendment of the written statement is allowed, subject to payment of Rs. 20,000/- as cost precedent.