Promila Bhagat vs Parveen and others

L.N. Mittal, J.

CM No. 8551.CII of 2012

The application is allowed. Annexures P/1 and P/2 are taken on record subject to all just exceptions. CM No. 8552.CII of 2012

Allowed as prayed for.

CR No. 1985 of 2012

Defendant no. 2 Promila Bhagat has invoked jurisdiction of this Court under Article 227 of the Constitution of India impugning order dated 1.2.2012, Annexure P/3 passed by learned Civil Judge (Junior Division), Ludhiana thereby dismissing application Annexure P/1 moved by petitioner for amendment of written statement.

Plaintiffs Sanjiv Bhagat (since deceased and represented by respondents no. 1 and 2 herein as his legal representatives) and Rajiv Bhagat respondent no. 3 herein filed suit against Kartar Devi respondent no. 4 herein (said to have since died) and her daughter Promila Bhagat petitioner herein for mandatory injunction directing the defendants to stop the user of the suit house and hand over vacant possession thereof to the plaintiffs who also claimed permanent injunction restraining the defendants from making any addition, alteration etc. in the suit house and from alienating the same. The plaintiffs alleged that they are owners of the suit property and defendants being their relatives were allowed to occupy the same as licensees, but they have not vacated it after termination of their licence.

Defendants alleged that defendant no. 1 is owner of the suit property and plaintiffs are not owners thereof.

By way of amendment of written statement, the defendants want to completely over-haul the written statement by making additions of facts running into four pages allegedly to elucidate the plea taken in the original written statement that Kartar Devi defendant no. 1 was owner of the suit house.

Plaintiffs resisted the amendment application by filing reply Annexure P/2 on various grounds.

Learned trial court vide impugned order Annexure P/3 dismissed the defendants'' application for amendment of written statement. Feeling aggrieved, defendant no. 2 has filed this revision petition.

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

Counsel for the petitioner contended that even in the original written statement, it has been pleaded that defendant no. 1 was owner of the suit house and amendment of written statement is sought to only elucidate the said plea. It was submitted that defendant no. 2 petitioner submitted her affidavit of examination in chief mentioning the facts now sought to be pleaded by amendment but the same was objected to being beyond pleadings and therefore, amendment application was filed. It was contended that there is no intention to delay the disposal of the suit and proposed amendment of written statement may be allowed on payment of costs.

I have carefully considered the aforesaid contention. At the outset, it has to be noticed that amended provision of Order 6 Rule 17 of the CPC (in short, CPC) which bars amendment of pleadings after commencement of trial is not applicable to the instant suit having been instituted in October, 1998 i.e. prior to the commencement of said amended provision.

As noticed hereinbefore, the suit was instituted in October, 1998 and the amendment application Annexure P/1 is dated 30.9.2011. The amendment application was thus moved almost 13 years after the filing of the suit. It is correct that law of amendment of pleadings is liberal and amendment of written statement is allowed more liberally than amendment of plaint. It is also correct that mere delay may not be sufficient to reject an amendment application. However, in the instant case there is monumental delay in filing the amendment application. It has been filed 13 years after the institution of the suit. There is no explanation whatsoever for the same. The facts now sought to be pleaded were already in the knowledge of the defendants when they filed the original written statement. There is no explanation why the said facts were not pleaded in the original written statement. On the contrary, plaintiffs are claiming possession of the suit house by mandatory injunction on the basis of their title and the suit is pending for more than 13 years. Proposed amendment of written statement would set the clock back and would result in almost de-novo trial of the suit. The petitioner by amendment of written statement wants to completely overhaul it by pleading so many new facts. This cannot be permitted after delay of almost 13 years.

In addition to the aforesaid, it is also worth mentioning that plaintiffs in November, 1998 had moved application seeking documents of title from the defendants but defendants opposed the said application. Even at that stage, the defendants did not seek proposed amendment of written statement. It may be mentioned that defendants by amendment want to inter alia take the plea that plot was purchased in the name of plaintiffs'' predecessor as benami by defendant no. 1. For the reasons aforesaid, I find that proposed amendment of written statement has been rightly declined by the trial court. There is no perversity, illegality or jurisdictional error in the impugned order of the trial court to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is accordingly found to be meritless and is, therefore, dismissed in limine.