Smt. Veena Parihar vs Smt. Parama Devi @ Parmeshwari and Others

Sangeet Raj Lodha, J.—This writ petition is directed against order dt. 24.4.10 passed by the Additional District Judge No. 1, Bikaner in Civil Suit No. 66/08, whereby an application preferred by the respondent-defendant seeking leave to amend the written statement, stands allowed. The petitioner preferred a suit u/s 6 of Specific Relief Act, 1963 for recovery of possession of a house alleged to have been purchased by her vide a registered sale deed dt. 6.1.07, from Durga Dutt @ Durga Ram S/o Badri Prasad, who was issued patta of the said house by the Municipal Board, Nokha, which was duly registered with the Sub Registrar, Nokha on 23.11.06. It was alleged that pursuant to the sale deed executed possession of the house was handed over to the petitioner by the seller Durga Dutt, however, he was forcibly dispossessed by the defendants, the wife of Durga Dutt and her sons Ganesh and Narayan.

The suit was contested by the defendants by filing a written statement thereto. The defendants have taken the stand that the house in question was purchased by father of defendant No. 1-Smt. Parma Devi in her name vide agreement dt. 11.8.83 and the construction was also raised on the plot purchased by her with the help of her father. It was alleged that the husband of defendant No. 1 Durga Ram is a drunkard and gambler, who by producing fake agreement, got the patta issued in his name, which has been cancelled by the Municipal Board, Nokha on 30.4.07. Accordingly, it was submitted that the patta having been cancelled, the sale deed executed in favour of the petitioner/plaintiff by Shri Durga Dutt does not create any right in his favour.

On the basis of the pleadings of the parties, the trial Court framed the issues. The evidence of the parties stand concluded. At this stage, the respondents/40 defendants preferred an application under Order VI Rule 17 CPC seeking amendment of the written statement. By way of amendment, the respondents sought to introduce a new para 17A in the written statement taking the stand that the defendant No. 1 is in adverse possession of the house to the knowledge of the plaintiff and everybody else and therefore, on account of adverse possession, she has acquired the title over the property. The application seeking leave to amend the written statement was contested by the petitioner/plaintiff by filing a reply thereto.

After due consideration of the rival submission to the amendment prayed for has been allowed by the Court below. Hence, this petition.

Learned counsel for the petitioner contended that the husband of the defendant No. 1 is not party defendant in the suit and there is no adjudicatory facts as alleged in para 17A of the amended written statement which could be the basis of dispute between the parties to the Suit to be decided by the trial Court. Learned counsel submitted that from bare perusal of para 17A, it is manifestly clear that the defendant No. 1 claims adverse possession in respect of the suit house against her husband Durga Ram, who is stranger to the suit. Learned counsel submitted that at this belated stage, the self contradictory and mutually destructive plea could not have been allowed by the Court below and therefore, the order Impugned and the order framing the additional issue, disserves to be set aside.

On the other land, the counsel appearing for the respondents submitted that it is settled law that for the complete and effective adjudication of the dispute between the parties, the amendment of the pleadings may be permitted by the Court at any stage of the proceedings and therefore, having regard to the facts and circumstances of the case, when the petitioner is in continuous possession of the suit house for last more than 25 years, the amendment prayed for has rightly been allowed by the Court below. Learned counsel submitted that the discretion exercised by the trial Court in allowing the amendment prayed for does not warrant any interference by this Court in exercised of its supervisory jurisdiction under Article 227 of the Constitution of India.

I have considered the rival submissions and perused the material on record.

It is to be noticed that as per the new proviso added to Order VI Rule 17 by the CPC (Amendment) Act, 2002, no application for amendment of the pleadings shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party applying for amendment could not have raised the matter before the commencement of the trial. Obviously, the said provision has been incorporated so as to shorten the litigation and expedite the disposal of the cases. The jurisdiction vested in the Court to permit or not to permit the amendment of the pleadings has to be exercised judicially taking into account the facts and circumstances of each case. Of course, the application seeking amendment cannot be rejected solely on the ground of delay without considering the relevancy of the amendment sought for, for complete and effectual adjudication of the lis between the parties.

Admittedly, in the instant case, the respondents/defendants have taken a categorical stand in the written statement that as a matter of fact, the defendant No. 1 is one true owner of the property, however, her husband on the basis of a fake agreement got the patta issued in his favour from the Municipal Board, Nokha, which stands cancelled and therefore, the sale deed executed in favour of the plaintiff does not create any right in his favour. Thus, the defendant has come with a specific case claiming herself to be owner of the property. Thus, the plea of adverse possession sought to be taken at this stage is contradictory and mutually destructive. Moreover, the respondents/defendants has claimed adverse possession against her husband Durga Dutt, who is not party defendant is not party to the suit. In any case, if the defendant had any intention to claim the title by adverse possession then nothing prevented her to set out specific pleadings in this regard Initially at the time of filing of the written statement. It is pertinent to note that while taking the plea of adverse possession, the defendant has not even given the specific date as to when adverse possession commenced and when it culminated in perfection of the title. It is settled law that the averments with regard to the adverse possession have to be specifically pleaded and proved by producing the cogent evidence. In this view of the matter, in considered opinion of this Court, at this belated stage, the trial Court has seriously erred in allowing such vague plea regarding adverse possession, which is in contradiction to the stand already taken by the respondents/defendants in the written statement. The petitioner could not have been allowed to set out a new defence, requiring adjudication on the basis of evidence to be led by the parties, at such a belated stage. In this view of the matter, the order impugned is not sustainable in the eyes of law. Accordingly, the writ petition is allowed. The impugned order dt. 24.4.10 passed by the Court below is set aside. The application preferred by the respondents/defendants seeking leave to amend the written statement is rejected. Needless to say that in view of the amendment prayed for being disallowed, the additional issue framed by the Court below shall not survive for consideration. No order as to costs.