Raghbir Singh and Others vs Prem Parkash Dhir and Another

L.N. Mittal, J.—Plaintiffs have invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition assailing order dated 11.06.2012 Annexure P-1 passed by the trial Court thereby dismissing application Annexure P-2 filed by the plaintiffs. Plaintiffs have filed suit for permanent injunction restraining defendants from dispossessing the plaintiffs from the suit land forcibly and illegally and without due process of law. The plaintiffs have made detailed averments in the plaint regarding agreement dated 11.01.1957 and previous litigation and as to how plaintiffs are in possession of the suit land.

Respondents/defendants have filed counter-claim in the suit seeking relief of possession of the suit land alleging that plaintiffs are trespassers.

Plaintiffs filed written statement to the counter-claim.

Plaintiffs moved application Annexure P-2 for amendment of their written statement to the counter-claim. It was alleged that the facts mentioned in the original plaint regarding agreement dated 11.01.1957 and previous litigation etc., although mentioned in the original plaint, were not mentioned in written statement to the counter-claim and are, therefore, required to be so mentioned, in addition to raising some legal preliminary objections.

Defendants, by filing reply, opposed the amendment application.

Learned trial Court vide order Annexure P-1 has dismissed the amendment application. Feeling aggrieved, plaintiffs have filed this revision petition to assail the said order.

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

Counsel for the petitioners contended that trial of counter-claim of defendants, which is in the nature of an independent suit, has not yet commenced and, therefore, proposed amendment of written statement to the counter-claim should have been allowed. It was also submitted that the facts already pleaded in the original plaint are sought to be pleaded by amendment of written statement to the counter claim, besides raising some legal objections and for this reason also, proposed amendment of written statement to the counter-claim should have been allowed.

There is considerable force in the aforesaid contentions raised by counsel for the petitioners. Law relating to amendment of pleadings is liberal although now the liberal approach in this regard has been curtailed regarding amendment of pleading sought after commencement of trial. In the instant case, however, trial of counter-claim of the defendants had not yet commenced when the plaintiffs sought amendment of the written statement to the counter claim. Law relating to amendment of written statement is more liberal than amendment of plaint.

In these circumstances, proposed amendment of written statement to counter-claim should have been allowed on payment of costs. It may be added that the facts sought to be pleaded by amendment are already pleaded in the original plaint, except that some more legal objections are also to be raised by amendment. For this reason also, the proposed amendment of written statement to counter-claim should have been allowed on payment of cots. For the reasons aforesaid, I find that trial Court committed illegality in dismissing the plaintiffs'' application Annexure P-2 for amendment of written statement to the counter claim. Impugned order of the trial Court suffers from jurisdictional error. Resultantly the instant revision petition is allowed. Impugned order Annexure P-1 passed by the trial Court is set aside. Application Annexure P-2 filed by the plaintiffs is allowed and plaintiffs are permitted to amend their written statement to the counter-claim as prayed for, subject to payment of Rs. 7,500/- as costs precedent.