Sumer Singh vs Hardo Alias Hawati Alias Messarti and Others

L.N. Mittal, J.—Sumer Singh defendant no. 3 and also one of the legal representatives of Duli Chand defendant no. 1 since deceased has filed the instant revision under Article 227 of the Constitution of India assailing order dated 25.02.2010 Annexure P/8 passed by learned Civil Judge (Junior Division), Palwal thereby dismissing application Annexure P/6 moved by defendant no. 3 and LRs of defendant no. 1 for amendment of written statement dated 10.4.2002, Annexure P/5 filed jointly defendants no. 1 and 3. Respondent no. 1 - plaintiff has based her claim in plaint Civil Revision No.1761 of 2010 -2-

Annexure P/4 on the basis of compromise decree dated 5.2.1991 passed in some previous suit to which Duli Chand defendant no. 1 herein was also party. On the basis of said compromise decree, the plaintiff has claimed herself to be owner in possession of agricultural land in suit measuring 15 kanals 16 marlas mentioned in para 8 of the plaint.

Defendants no. 1 and 3 in their written statement denied that the plaintiff is owner in possession of the suit land. It was alleged that defendant no. 3 is owner in possession of the suit land as declared vide another decree dated 29.9.1995. Various other pleas were also raised.

Defendants no. 1 and 3 in their amendment application Annexure P/6 pleaded that compromise decree dated 5.2.1991 as well as the alleged compromise on which the said decree is based are result of fraud. Defendant no. 1 Duli Chand was exclusive owner in possession of the suit land being his self acquired property and therefore, the same could not be transferred to plaintiff herein by way of alleged compromise.

Plaintiff by filing reply Annexure P/7 opposed the application for amendment of written statement.

Learned trial court vide impugned order Annexure P/8 dismissed the defendants'' application for amendment of the written statement. Feeling aggrieved, the instant revision has been filed.

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

Counsel for the petitioner contended that amended provision of Civil Revision No.1761 of 2010 -3- Order 6 Rule 17 of the CPC (in short, CPC) whereby amendment of pleading cannot be allowed after commencement of trial unless party seeking amendment could not have raised the matter before commencement of trial inspite of due diligence, is not applicable to the instant case because the said amended provision came into force with effect from 1.7.2002 and the same is not applicable to suits instituted prior thereto whereas the instant suit had been instituted prior to 1.7.2002 because original written statement Annexure P/5 is dated 10.4.2002. There is considerable merit in the contention. Trial court has relied on amended provision of Order 6 Rule 17 CPC to dismiss the defendants'' application for amendment of written statement. However, the said provision is not applicable to the instant suit for the reason canvassed by counsel for the petitioner. Consequently, the amendment application could not be dismissed on this ground.

Counsel for the petitioner relying on judgments of Hon''ble Supreme Court in Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., 2007 (2) RCR (Civil) 830 and Sarmukh Singh vs. Baldev Singh, Civil Appeal No. 4966 of 2008, decided on 4.8.2008 contended that amendment of written statement can be allowed at any stage of the suit and cannot be rejected merely on the ground of delay. It was also submitted that law relating to amendment of written statement is more liberal as compared to law relating to amendment of plaint.

On the other hand, counsel for respondent no. 1 - plaintiff Civil Revision No.1761 of 2010 -4- emphasized that written statement Annexure P/5 was filed on 10.4.2002 while Duli Chand defendant no. 1 himself was also alive. Duli Chand died on 14.5.2005 and the instant amendment application was filed on 27.1.2010 when the suit was fixed for rebuttal evidence and final arguments and therefore, amendment of written statement has been rightly declined by the trial court.

I have carefully considered the rival contentions. It is correct that proposed amendment has been sought very belatedly. However, mere delay is not sufficient to reject the application for amendment of written statement in suit to which amended provision of Order 6 Rule 17 CPC is not applicable. Prior to amendment of the said provision, amendment of written statement was being allowed even at belated stage. Consequently, in the instant case, amendment of written statement cannot be declined merely on the ground of delay. Moreover, the delay is also inconsequential because counsel for the petitioner has stated that after amendment of written statement, the defendants would not lead any further evidence. For this reason, the delay further pales into insignificance. Moreover, for the delay, the plaintiff can be compensated by cost.

For the reasons aforesaid, I find that the impugned order of trial court suffers from jurisdictional error because the trial court refused to exercise jurisdiction which vested in it to allow proposed amendment of written statement. The trial court erroneously dismissed the application for amendment of written statement by relying on amended provision of Order Civil Revision No.1761 of 2010 -5- 6 Rule 17 CPC which is not applicable to the instant suit having been instituted before the enforcement of the amended provision of Order 6 Rule 17 CPC. Accordingly, the impugned order warrants interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India.

As a necessary consequence, the instant revision petition is allowed. Impugned order Annexure P/8 passed by trial court is set aside. Application Annexure P/6 moved by defendants no. 1 and 3 for amendment of written statement is allowed. Defendants no. 1 and 3 are permitted to make proposed amendment in the written statement subject to payment of Rs 10,000/- as costs precedent.