Sukhdev Singh and Others vs Chajju and Another

M.S. Liberhan, J.—This revision-petition arises out of the order dated April 20, 1991, of the Addl. District Judge, Kurukshetra, declining !he application of the petitioners for amendment of the written statement.

Plaintiffs brought a suit for declaration that by afflux of time they have become owners as the land was not got redeemed by mortgagors. It was further claimed that the mortgagor-defendants illegally and forcibly dispossessed the mortgagee''s plaintiffs without redemption Plaintiffs suit was decreed. In the course of arguments in appeal, the petitioners applied for amendment of their written statement to the effect that they be permitted to raise the preliminary objections as under:-

Un-amended plaint Proposed amendment. That the suit is also That the suit is also bad bad for non-joinder of for non-joinder of necessary parties i.e. all necessary parties i.e. the heirs of S. Dayal Singh all the heirs of S. Dayal Singh and Dasoudhi subsequent mortgagees. 8. That para No. 8 of the That para No. 8 of the plaint as given plaint as given is wrong is wrong and denied. Neither the land and denied. Neither the was under mortgage nor was there any land was under mortgage nor question of redemption. The defendants was there any question of its are in possession of the land as redemption. The defendants owners without any mortgage charge over are in possession of the land it. That in case it was mortgaged then as owners without any it was redeemed on 12.5.69 when entire mortgage charge over it. amount of Rs. 8000/- was paid by Das- ondhi to Sadhu which included the amount of Rs. 33/5, Ana, 9 Pai and further payment of Rs. 16,000/- by the defendants to Dasondhi and got poss- ession from him who had taken from Sadhu earlier.

The petitioners were directed by the appellate court to apply for additional evidence, if necessary, before the start of the arguments. The documents were filed in the court by the plaintiff-respondents, on the request of the defendant-appellant.

The application for amendment was opposed inter-alia on the ground that the same has been filed belatedly and to cause un-necessary delay An the disposal of the appeal. The proposed amended pleas are contrary to the pleas already taken by the applicants,

The learned court below declined the application for amendment inter-alia holding that the defendants earlier took the plea of land in dispute being never mortgaged and by proposed amendment, propose to take the plea that the land was in fact mortgaged and was redeemed on 12. 5.1969 when the amount of Rs. 8000/- was paid by Dasondhi to Sadhu which included the amount of Rs. 33/5 Ana 9 Pai and a further payment of Rs. 16000/- by the defendants to Dasondhi and got possession from him who had taken from Sadhu earlier. Thus it would amount to withdrawal of earlier stand. The defendants have not come to the courts with clean hands- It was found, the defendants were well aware of the facts proposed to be put in by way of amendment in the written statement. The court further found, it was in rebuttal evidence that the plaintiffs produced mortgage deed Ex. PD, on the back of which receipt of redemption dated 12.05.1960 is recorded. The trial court decreed the suit on 19.12.1987. Similarly, documents Ex. PX, PA, PX, PC and PD were produced on 27.11.l987 from which the defendants claim the amendment of the written statement,

It is well established rule of law that amendment of the pleadings can be permitted at any stage, however, parties would not be permitted to substitute a new or a fresh case or cause of action by way of amendment. Ordinarily delay in seeking the amendment has to be taken note of, The court observed that since the application for amendment was filed after 4-1/2 years of filing of the written statement, the same cannot be permitted in the absence of plausible reasons for delay. It was further found that delay smacks of malafide on the part of the defendants.

Court below after noticing the judgments cited by the counsel for the parties; Ayesha Khatoon Vs. Durga Sahaya, ; Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Others, , Surain Singh Vs. Swami Dhian Santosh Anandpuri and Another, ; Ishwardas v. The State of Madhya Pradesh AIR 1979 SC 551; Ishwar Singh v. Slier Singh (1988) 94 PLR 391 and Gumam Singh v. Dev Raj (1990) SLJ P&H 1103, the lower appel late court came to the conclusion, since the application for amendment has been preferred after a lapse of long time, consequently amendment cannot be permitted.

The learned counsel for the petitioners vehemently argued that firstly there was no delay in seeking the amendment particularly in view of the admitted fact that the mortgage deed on the back of which (here is redemption receipt recorded, was itself in November, 1987 in rebuttal evidence and the suit was decreed within 30 days of its production in the court. Thus the applicants who arc illiterate villagers having entrusted their brief to their counsel were to depend on legal advice. There was no reasonable opportunity to apply for the amendment. No malafide is attributable to the petitioners. The petitioners concededly were the owners and are in possession of the land in dispute. The only claim of the respondent-plaintiffs was that they have become owners by afflux of time.

The learned counsel for the petitioners relied on Ram Singh and Ors. v. Belt Ram 1989 PLJ 335; Ram Chand v. Kurumvir 1987 PLJ 611 and Kaka Singh v. Mithu Dass 1990 PLJ 345 in order to contend that amendment was allowed in the facts and circumstances of those cases even after a lapse of 8 years, 3 years etc-etc. Thus, mere delay is not a ground to decline the amendment.

It is well settled that delay by itself is no ground to decline the amendment. Amendment can be permitted even at the appellate stage. The object of permitting the amendment is to meet the ends of justice and to finally dispose of the litigation between the parties. Mere delay in seeking amendment cannot by itself dubbed as malafide which fact has to be seen in the facts and circumstances of each case. The amendment can usually be disallowed if the suit would have become time barred or if parties to lis would be deprived any legal right which cannot be compensated with costs. Other side acquired same right by afflux of time, depriving him of which would be in equirable. I may hesten to that amendment of written statement can be allowed liberally unless it results either amounts withdrawal of admission or there is abuse of process of court or such similar reasons otherwise. But this principle would be applicable in case some amendment is being sought in the plaint. Mere mistake or negligence delay the procedure, the cause of justice would become spider''s net and result in perpetuating injustice. Inadvertently violation of rules and procedure would not by itself be sufficient ground to disallow the amendment, unless it is mala fide. Delay in seeking the amendment is immaterial, as heavy costs in the facts and circumstances of the case is the panecea for delay and even for negligence.

In view of the facts stated above, when the question of amendment of the written statement has emerged only after the plaintiffs produced documents during the course of arguments i.e. mortgage deed dated 12.5.69 with endorsement of redemption recorded on the hack of it, suit being decreed within 25 days of the production of the documents in rebuttal by the plaintiffs, it is fit case in the facts and circumstances of the case in hand, amendment sought even at the appellate stage is not belated as such. We cannot loose sight of the fact of the illiteracy of the litigants and their dependence on their respective counsel for advice. The basic purpose of the procedural law is to do justice between the parties and not to perpetuate injustice.

In view of the observation made above, disallowing the amendment solely on the ground of laches which by itself is no ground to refuse to exercise the jurisdiction to amend the written statement would result in perpetuating injustice to the petitioner. The injustice is obvious from the factum that in the eventuality of amendment being allowed, it is proved that the land in dispute was redeemed. The natural corollary would be that the plain tiff-respondents had never become owners by afflux of time. Thus by disallowing the amendment injustice would be perpetuated to the petitioners who are in fact the real land owners. The finding of the lower appellate court, declining the amendment solely on (he ground that the amendment was being sought belatedly, resulting in presumption of malafide cannot be sustained. Thus, in my considered view the learned Addl. District Judge acted with material irregularity which has resulted in substantial injustice to the petitioners. 12. Nothing substantial has been pointed out by the learned counsel for the respondents to persuade me to take the contrary view.

In view of the observation made above, the revision- petition is accepted. The proposed amendment of the written statement is allowed subject to payment of Rs. 1000/- as costs. The parties are directed to appear before the appellate court on 06.04.1994.

Any observation made above shall not be taken note of while deciding the appeal/suit on merits.