Point of Law : Principles applicable to amendments of plaint are equally applicable to amendments of written statements.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has assailed order dated 02.11.2021, passed by learned Civil Judge Arki, District Solan H.P. in C.M.A. No. 289/6 of 2020 in Civil Suit No. 115-1 of 2012.

2. Petitioner and proforma respondents herein are the defendants in Civil Suit No. 115-1/2012 before learned Trial Court. Respondent No.1 herein is the plaintiff and remaining respondents herein are profoma defendants in the above noted suit.

3. Parties here-in-after shall be referred to by the same status as they hold before learned Trial Court.

4. Plaintiff initially filed a suit for permanent prohibitory injunction in respect of land comprised in Khata Khatoni No. 26/86, Khasra No. 777, situate in Village Hatkot, Pargana Kunihar, Tehsil Arki, District Solan, H.P.(for short ‘the suit land’). It was alleged that plaintiff and proforma defendants were owners in possession of the suit land and defendants having no right, title or interest thereunder were strangers. Defendants were trying to interfere in the possession of plaintiff and proforma defendants over the suit land by trying to raise construction. On such premise, a decree for permanent prohibitory injunction was sought seeking to restrain the defendants from interfering in the suit land and from dispossessing the plaintiff and proforma defendants therefrom.

5. In written statement, defendants took a specific stand that defendant No. 1 (Yatinder Singh) had entered the possession of suit land on 13.01.1998 and had started construction work of permanent nature with hostile animus. The construction was completed in three months. Since 13.01.1998, defendant No. 1 had been coming in exclusive possession of suit land openly, peacefully and continuously as of right and to the knowledge of all including plaintiff and other joint owners. It was specifically pleaded that respondent No. 1 had raised permanent structure and was running a shop therein. He had installed an electric connection in the shop in his name and thus, had perfected the title on the suit land by way of adverse possession even prior to filing of the suit.

6. The plaint was amended with the averment that during pendency of the suit defendants had succeeded in raising unauthorized construction on the suit land. Accordingly, the decree of mandatory injunction against defendants was also sought. In written statement filed to the amended plaint, defendants reiterated the same defence as raised by them in the written statement filed to the original plaint.

7. Plaintiff completed his evidence in the year 2017. Thereafter, the case came to be adjourned on one pretext or the other. Lastly, defendants were afforded last opportunity to lead their evidence. However, they came up with an application for amendment of written statement. The amendments were sought in preliminary objection No. 1 as also para-1 of the reply on merits by raising a plea that during the Land Revenue Settlement, the dimensions of the land belonging to defendants in old Khasra No. 158 corresponding to new Khasra No. 763 that abutted the suit land had been considerably reduced in width from 46.63 meters to 42.00 meters and therefore, the suit land belonged to the defendants and the plaintiff and proforma defendants had no right to the suit land. Such plea was sought to be raised in alternative.

8. Plaintiff filed a reply to the application and objected to the proposed amendment primarily on the ground that it would amount to withdrawal of admission by defendants as to title of plaintiff and proforma defendants, which was impermissible in law. The amendment was also objected on the ground that it was malafide and had been filed only to delay the proceedings.

9. Learned Trial Court dismissed the application of defendants for amendment of written statement, vide impugned order on the ground that the application was malafide and could not be entertained at such belated stage. It was also held that the application was filed merely to delay the proc