Sanjeev Kumar deceased through LRs & Others vs Vinod Kumar & Others

Satyen Vaidya, J

By way of instant petition, the petitioners have assailed order dated 29.10.2021 passed by learned Senior Civil Judge, Court No.1, Dehra, District Kangra, H.P. in CMA No.426 of 2021 in Civil Suit No.53 of 2015 titled as “Vinod Kumar & others Vs Sanjeev Kumar & others”, whereby the application of petitioners under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) for amendment of written statement has been dismissed.

The petitioners herein are defendants in Suit No.53 of 2015 pending on the files of learned Senior Civil Judge, Court No.1, Dehra, District Kangra, H.P. The respondents herein are the plaintiffs. The parties hereinafter, for the sake of convenience will be referred by the same status as they hold before learned Trial Court.

The plaintiffs have filed suit for possession of land comprised in Khata No.67, Khatauni No.90, Khasra Nos.170 and 171 (for short the suit land) against the defendants. The plaintiffs claimed the title over the suit land and the defendants have been alleged to be the trespassers.

The defendants have filed the written statement inter alia raising a plea having semblance of having perfected the title over the suit land by way of adverse possession. It will be relevant to reproduce the extract of the written statement filed by the defendants.

“True facts that predecessor in interest of defendant was in possession over suit land before the year 1978 with consent of Sh. Kanshi Ram and Jagdish Chand and accordingly Sh. Khushi Ram has raised his residential house over the same land and till today the defendants are enjoying this peaceful, open and continues possession on account of his open, hostile and notorious acts done by him as such the replying defendants is in possession over the same and has become owner on account of adverse possession since the said date. The plaintiff since prior to year 1978 till to date never had the courage to interfere in the same and the defendants openly, peacefully and continuously possess the suit land to the knowledge of plaintiffs.”

After framing of the issues, the plaintiffs produced their evidence by way of affidavits. Before cross­examining the witnesses of plaintiffs, defendants filed an application under Order 6 Rule 17 of the Code for amendment of written statement. By way of amendment, the defendants sought to raise the plea of irrevocable license as also the estoppel against the plaintiffs. Further, certain typographic mistakes were also sought to be corrected.

The plaintiffs contested the application.

Learned Trial Court has dismissed the application by holding that the application had been filed after commencement of trial and there was no satisfactory explanation for not filing the same before commencement of trial despite due diligence. Learned Trial Court also held that the plea of irrevocable license could not be permitted being contrary to the plea already raised by the defendants. It was also noticed that the defendants had already taken plea of estoppel and Issue No.7 stood framed in that regard.

I have heard learned counsel for the parties and have also gone through the record of the case carefully.

Order 6 Rule 17 of the Code permits the pleadings to be amended, if the amendments are necessary for adjudication of the matter in controversy. In the facts of the case, in hand, the defendants are defending a suit filed on the basis of title of plaintiffs. As noticed above, the plea of defendants originally raised in the written statement though resembles the ingredients of adverse possession but at the same time the defendants have stated to have entered upon the possession of suit land with the consent of the owner(s). Thus, in a way, the defendants have taken a plea of permissive possession. Now, the defendants want to raise the plea of irrevocable license and estoppel, which also have their genesis in the plea of permissive possession. Thus, the plea now sought to be raised by defendants cannot be said to be alien to the controversy, rather it will be necessary for adjudication of real matter in controversy between the parties.

It is more than stated that in a suit, a defendant is entitled to raise alternative inconsistent pleas but he cannot be permitted to raise pleas which are mutually destructive of each other. Keeping such principle of law in view, the amendment sought by the defendants can be stated to be alternative inconsistent plea but it cannot be said to be mutually destructive for at every stage, the defendants have projected their possession over the suit land to be permissive in one way or the other.

As regards, the inability of defendants to seek the amendment before commencement of trial, the same cannot be taken as the sole ground to reject the prayer for amendment of written statement in light of the dictum in “Dinesh Goyal alias Pappu Vs. Suman Aggarwal (Bindal) & others” 2024 SCC Online SC 2615 wherein Hon’ble Supreme Court has held that in case the amendment sought is necessary for adjudication of real matter in controversy between the parties, such factor will overweigh the delay in seeking amendment or the lack of diligence in this regard by the party seeking the amendment.

Even otherwise, the laymen litigant is not supposed to be conversant with the technical pleas of adverse possession or irrevocable license prevalent in the civil law. The delay or omission to take a plea, thus, cannot be directly attributed to the litigant.

Noticeably, learned Trial Court has even refused to allow those amendments which were formal in nature.

In light of above discussion, I find substance in the petition. The petition is accordingly allowed. Order dated 29.10.2021 passed by learned Senior Civil Judge, Court No.1, Dehra, District Kangra, H.P. in CMA No.426 of 2021 in Civil Suit No.53 of 2015 titled as “Vinod Kumar & others Vs Sanjeev Kumar & others” is set aside. The application of defendants for amendment of written statement is allowed subject to cost of Rs.5000/­.

The petition is accordingly disposed of so also all miscellaneous application(s), if any. It is clarified that payment of cost will be condition precedent.