Sunil Kumar and Others vs Patasi Devi and Others

Inderjit Singh, J.—Petitioners Sunil Kumar @ Kalia and another have filed this revision petition against Patasi Devi and other respondents under Article 227 of the Constitution of India praying for setting aside the impugned order dated 05.09.2013, vide which application for amendment of written statement has been dismissed by the learned Civil Judge, (Senior Division), Rewari. Notice of motion was issued and respondent No. 1 appeared through his counsel and contested this petition, whereas none appeared on behalf of respondents No. 2 and 4 and service of respondent No. 3 was dispensed with being proforma respondent.

I have heard learned counsel for the parties and have gone through the record.

From the record, I find that Patasi Devi filed a suit against Sunil Kumar @ Kalia and other defendants. In that suit, an application was filed by the defendants under Order 6 Rule 17 read with Section 151 CPC for amendment in the written statement and counter claim. Defendants sought amendment in the written statement and counter claim on the ground that applicant-defendants claimed to have become owner of the disputed property by sale deed dated 20.09.2005. However, later on it was discovered that recital in the sale deed with regard to the khasra numbers of the properties purchased had been wrongly mentioned. Therefore, during the pendency of the present suit, a supplementary sale deed dated 14.05.2010 has been executed in favour of the applicants-defendants No. 1 and 2 by giving correct numbers of the land. Now applicant-defendants want to incorporate the correct numbers of the land in the written statement and counter claim.

Learned Civil Judge, (Senior Division), Rewari, vide order dated 05.09.2013, dismissed the application by holding that as far as description of the suit property under the possession of the applicant-defendants is concerned, the land is shown to be enclosed by boundaries towards northern Rasta. The claim of the applicant-defendants is that amendment will not change the nature of the suit and will not cause any prejudice to opposite party. The Court held that parties are co-sharers who have purchased separate pieces of land from the earlier co-sharers. As per the claim of the defendants, plaintiff has illegally and in an unauthorized way encroached on the rasta which was given by the vendors and allegedly plaintiff after encroaching the rasta has put a gate towards northern side of the rasta. Defendants have sought relief that the encroachment made by the plaintiff over the rasta may be removed by demolition and permanent injunction decree be passed against the plaintiff for raising any construction over the said rasta. The Court held that there is no direct controversy regarding ownership of the land in reference to khasra numbers because the suit and counter claim both are for decree of injunction. Even the possession of the property of the applicant-defendants by way of surrounding boundaries will not change by changing in the khasra numbers. The Court held that the boundaries described by the surrounding properties are more relevant than the description of the property by khasra numbers.

The learned Civil Judge further held that regarding supplementary sale deed which has been executed during the pendency how far this sale deed will benefit, the defendants will be seen later on as it is during the pendency of the suit.

A perusal of the impugned order shows that no illegality has been committed by the Court while passing the order. The learned counsel for the petitioners cited a judgment passed by this Court in Ashwani Kumar Aggarwal v. Shanti Lal, 2008 (2) RCR (Civil) 452, in which it is held that all amendments which are helpful in effectively deciding the controversy between the parties must be allowed liberally to avoid delay and multiplicity of litigation. The learned counsel for the petitioners also cited a judgment passed by this Court in Monika v. Sandeep, (2013-1) 169 PLR 360 on the same point. He has also cited a judgment passed by the Hon''ble Supreme Court in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., in which also it is stated that amendment sought in the written statement or the plaint may be allowed to take inconsistent plea. Inconsistent pleas can be raised by defendants in the written statement. It is further held that Court shall not allow amendment in pleadings if trial had already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. I have gone through the above-cited judgments and the same having distinguished facts will not apply in the present case. The order passed by learned Civil Judge, (Senior Division), Rewari dated 05.09.2013, is correct and as per law and does not require any interference from this Court and same is upheld. Finding no merits in the revision petition. The same is, hereby, dismissed.