Tarsem Singh vs Tarsem Lal

G.C. Garg, J.—After hearing learned counsel for the parties, C.M. No. 12990 C-II of 1998 is allowed and the revision petition is ordered to be restored at its original number.

This revision is directed against the order dated 14.6.1193 of the trial court whereby an application moved by the defendant for amendment of the written statement was allowed.

Plaintiff-petitioner filed a suit for specific performance of the agreement dated 10.12.1989 entered into between the parties, and in the alternative a suit for the refund of Rs. 30,000/-. The suit was filed in March, 1990. In the written statement, the primary stand of the defendant was that he did not receive a sum of Rs. 15,000/- as earnest money under the agreement and that he did not execute the agreement in question and that the receipt is false and fake. Parties were put to trail thereafter, after framing issues. The plaintiff concluded his evidence on 18.1.1993 and thereafter the case was posted for evidence of the defendant. It was at that stage the defendant moved application dated 17.2.1993 seeking amendment of the written statement. The defendant by moving this application wanted to take a somersault by alleging that the agreement was executed and the money was received but it was rescinded thereafter and the earnest money was refunded.

Trial Court on a consideration of the matter allowed the application by passing a cryptic and non-speaking order dated 14.6.1993. The order passed by the trial court is that behalf reads thus :-

"Heard. To the proposed amendment defendant wants to take the plea of repayment of the earnest money of Rs. 15,000/-. The proposed amendment will be helpful in completely deciding the matter in controversy and in an effective manner. In the interest of justice, application is allowed subject to cost of Rs. 50/as costs. Now for filing of amended W.S. and for payment of cost and for replication, adjourned to 21.7.1993."

I have heard learned counsel for the parties and perused the impugned order. As already noticed and to say the least, the impugned order is totally a non-speaking and cryptic order. No reason whatsoever has been given by the trial court for granting the prayer for amendment of the written statement. It was at least expected of the trail court to notice the facts, the pleas earlier taken and the reasons put forward by the defendant for seeking amendment of the written statement. The trial court was also expected to see, whether the plea sought to be taken by way of amendment was not contradictory of the pleas already taken and was not mutually destructive of those pleas. Amendment of the written statement cannot be allowed without examining the effect thereof and just at the asking of the defendant.

I have also heard learned counsel for the parties on the merits of the application. In the written statement originally filed, the defendant denied the execution of the agreement to sell as also the receipt evidencing the payment of earnest money by alleging that the agreement and the receipt are forged and fabricated documents. By seeking amendment of the written statement, the defendant wants to add that he did execute the agreement and receive earnest money but the earnest money was returned and the agreement was cancelled. The plea now sought to be raised in the written statement by way of amendment is mutually destructive of the plea earlier taken. Such amendment cannot be allowed especially when the application seeking amendment of the written statement was moved after a long delay i.e. after three years of the filing of the earlier written statement and after the conclusion of evidence by the plaintiff. If such amendment is allowed as in the present case, the effect would be that the plaintiff would be totally displaced and the entire evidence already led by him will be rendered useless. In this view of the matter, I am clearly of the opinion that the trial court acted illegally and with material irregularity in allowing the application of the defendant for amendment of the written statement.

In view of the above, the revision petition is allowed and the order under revision is set aside. Parties through their counsel are directed to appear in the trial court on 12.1.1999 for further proceedings in accordance with law.

Suit in this case was filed in the year 1990 and proceedings remained stayed because of this revision petition. In that view of. the matter, the trial court is directed to proceed with the suit and dispose it of at an early date after affording not more than three effective opportunities to the defendant for his evidence at short intervals. No costs.