Ram Chander vs Ramanand and Another

L.N. Mittal, J.—Plaintiff Ram Chander has filed this revision petition invoking Article 227 of the Constitution of India, assailing order dated 20.05.2011 passed by learned Civil Judge (Senior Division), Narnaul, thereby allowing application moved by defendants/respondents for amendment of written statement.

Plaintiff in the suit claimed to be owner in possession of the suit property bearing Ahata No.128 house No.153. The defendants in their written statement pleaded that they had purchased Ahata No.127 House No.152 from plaintiff''s sons on 04.07.2000 through some writing for Rs.18,800/-(Rupees eighteen thousand eight hundred) and since then they are owners in possession thereof.

By way of amendment of written statement, the defendants sought to plead that Giana original owner of the suit property (bearing Ahata No.128 House No.153) had left the village and handed over its possession to predecessor in interest of the defendants and now defendants are in possession thereof whereas plaintiff has no concern whatsoever with the suit property. The said amendment has been allowed by the trial Court by impugned order dated 20.05.2011, which is under challenge in this revision petition.

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

Learned counsel for the petitioner contended that proposed amendment in written statement has been allowed after both parties had concluded their evidence and the case was fixed for rebuttal evidence and final arguments and therefore, proposed amendment could not have been allowed. Reliance in support of this contention has been placed on judgment of this Court in the case of Rakesh Kumar & another versus Satnam Singh & others, 2010 (4) Civil Court Cases 128.

On the other hand, learned counsel for the respondents contended that proposed amendment has been rightly allowed because it would not change the nature of defence and proposed amendment has been sought only to elucidate and clarify the defence taken in the original written statement. It was also contended that amendment of written statement stands on different footing than amendment of plaint and Courts are more liberal to allow amendment of written statement than amendment of plaint. It was also contended that defendants had narrated the facts, now sought to be pleaded by amendment, to their counsel in the first instance, but the counsel did not plead the same in the original written statement and the defendants cannot be penalized for the fault of their counsel. Reliance in support of these contentions has been placed on judgment of Hon''ble Supreme Court in the case of Usha Balashahed Swami & others versus Kiran Appaso Swami & others, 2007 (2) RCR (Civil) 830 and two judgments of this Court in the cases of Ramanand versus Sedhu and others, 2010 (2) RCR (Civil) 31 and Shiv Dutta and others versus Dharambir and others, 2008(1) RCR (Civil) 479.

I have carefully considered the rival contentions.

Application for amendment of written statement was moved after both parties had concluded their evidence and the case was fixed for rebuttal evidence and final arguments. Order 6 Rule 17 of the CPC (in short, CPC) lays down that no application for amendment of pleadings shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In the instant case, amendment of written statement was sought long after commencement of trial and in fact after conclusion of evidence of both sides. It cannot be said that defendants could not have pleaded the facts sought to be pleaded by amendment, before commencement of trial in spite of due diligence. It is a lame pretext that due to fault of the counsel, the said facts could not be pleaded. If on such pretext, amendment of pleading is allowed at final stage, then in every case, fault of the counsel would be pleaded to seek amendment of pleadings at final stage of the suit, although intention of the law is not to permit such amendment of pleadings after commencement of trial. In the instant case, it cannot be said that the defendants could not have pleaded these facts before commencement of trial in spite of due diligence.

On the other hand, by way of amendment, defendants want to change the nature of their defence completely. In the original written statement, they have not claimed any right, title or interest in suit property bearing Ahata No.128 House No.153 whereas by way of amendment of written statement, the defendants want to plead that they are in possession of the suit property having been delivered its possession to them by the previous owner Giana who left the village. Similarly in the original written statement, the defendants have not pleaded that plaintiff has no concern with the suit property and in fact in the original written statement, the defendants have not even specifically denied that plaintiff is owner in possession of the suit property, but by way of amendment of written statement, the defendants now want to plead that plaintiff has no concern with the suit property. Thus defendants by way of amendment want to drastically change their version at fag end of the trial of the suit, which is not permissible.

For the reasons aforesaid, I find that impugned order of the trial Court is clearly unsustainable being perverse and illegal. It suffers from jurisdictional error because the learned trial Court has exercised jurisdiction which did not vest in it to permit amendment of written statement at fag end of the trial of the suit.

Accordingly the instant revision petition is allowed. Impugned order dated 20.05.2011 passed by the trial Court is set aside and application moved by the defendants/respondents for amendment of the written statement stands dismissed.