Shalender Kumar vs Kiranbir Sandhu and Others

Sanjay Karol, J.—Defendant No. 3-petitioner, in this petition, filed under Article 227 of the Constitution of India, is assailing the order dated 24.4.2013, passed by Civil Judge (Junior Division), Dalhousie, dismissing the petitioner''s application, seeking amendment of written statement filed by defendant No. 1, as adopted by the present petitioner. Plaintiff filed a suit against the defendants pleading that order dated 12.7.2006 passed by the Assistant Collector, 1st Grade, Dalhousie, recording partitioning of the suit property inter se the parties is illegal, void and inoperative. Plaintiff claimed to be in joint possession of the suit property alongwith co-owners arrayed as defendants.

Defendant No. 1 filed written statement resisting the suit, pleading partition inter se the parties in terms of order passed by the Revenue Officer. Significantly, petitioner adopted the said written statement.

During the course of hearing, the fact that plaintiff''s evidence is over and the case is fixed for recording the defendants'' evidence is not disputed.

When the case was fixed for recording of the defendant No. 3/petitioner''s evidence, an application was moved by him seeking amendment of the written statement, incorporating a plea that apart from being an original owner, he was a lessee in the suit land through other co-owners. Trial Court dismissed the application, inter alia, observing as under:

...The present applicant filed written statement in which he did not claim any right, title or interest in the suit land. Thereafter on the application of the plaintiff the plaint was allowed to be amended vide order dated 21-04-11 whereby the plaintiff was permitted to seek declaration to the effect that the suit land comprised in khasra Nos. 2407/1932 and 2408/1932 is jointly owned by the plaintiff and defendant No. 1 Ashwani Kumar. Again opportunity was given to the present applicant to file amended written statement but he did not file written statement and instead adopted the written statement filed by defendant No. 1 Ashwani Kumar. Now when the suit has become about seven years old and as may (sic: many) as three opportunities have already been granted to the defendants to lead their evidence, the applicant has suddenly realized that he is in possession of the suit land and there is a lease deed executed by the proforma defendants in his favour that too prior to the filing of the present suit. The applicant/defendant No. 3 being a party to the alleged lease deed dated 25-11-06 can not be heard to say that he could not have pleaded the said lease deed before the commencement of trial. Therefore in my considered view this conclusion cannot be reached by any stretch of reasoning that inspite of due diligence the applicant could not have raised the matter before the commencement of trial. The present application is therefore hit by proviso to order 6 Rule 17n CPC, hence dismissed. Let application be tagged with main case file and DWs be now summoned on taking appropriate steps within 15 days for 15-05-13. Last opportunity granted.

Having heard learned counsel for the parties, I am of the considered view that there is no error, illegality or perversity or error apparent on the face of record, warranting interference with the impugned order.

At some stage, all litigations must come to an end. Petitioner''s prior application for amendment was allowed. He chose not to file any written statement and adopted the written statement so filed by defendant No. 1. Plaintiff''s evidence was recorded and opportunities afforded to the defendants to lead evidence, it is only then that petitioner filed a fresh application, seeking amendment taking a totally new plea, which was well within his knowledge, even prior to the filing of the suit in question. The alleged lease deed, even as per the petitioner, was executed on 25.11.2006. Endeavour of the petitioner, as is evident from the record, is only to procrastinate the proceedings. The factum of execution of lease deed was well within his knowledge. It is not his case that despite due diligence, he could not discover this fact. There has been inordinate delay in filing the application, causing serious prejudice to the plaintiff. Trial has commenced since long. Also, order passed by the trial Court is self-speaking. Hence, in my considered view, there is no illegality or perversity in the order passed by the trial Court, warranting interference by this Court. Petition is dismissed.

Petition stands disposed of, so also the pending application(s), if any.