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IN THE HIGH COURT OF PUNJAB AND HARYANA
Raj Mohan Singh, J.
Aadish Aggarwal – Appellant
Vs.
Brijeshwar Swaroop – Respondent
CR No. 6659 of 2016(O&M)
Decided On : 12-09-2017
(B) Civil Procedure Code, 1908, O.6 R.17 – Amendment of written statement – Delay in moving the application for amendment cannot be taken to be a ground for rejection of the proposed amendment. (Para 14)
(C) Civil Procedure Code, 1908, O.6 R.17 – Amendment of written statement – Defendants is entitled to take inconsistent plea in the written statement – Even defendant can plead inconsistent stand and can explain the admission made in the earlier written statement. (Para 14)
(D) Civil Procedure Code, 1908, O.6 R.17 – Amendment of written statement – The amendment of written statement is to be liberally construed and the same is placed at a different pedestal then the one meant for amendment of the plaint. (Para 14)
(E) Civil Procedure Code, 1908, O.6 R.17 – Amendment of written statement – It is mandatory for Court to allow all amendment which are necessary for the purpose of determining the real controversy between the parties. (Para 15)
(F) Civil Procedure Code, 1908, O.6 R.17 – Amendment of written statement-Merits of Case – Court is not obligated to go into the correctness or falsity of the case of either side in the amendment – The merits of the case are not to be adjudged at the stage of allowing or rejecting the prayer for amendment. (Para 15)
Raj Mohan Singh, J.
Petitioners have assailed the order dated 21.09.2016 passed by Civil Judge (Junior Division), Safidon, vide which application under Order 6 Rule 17 CPC filed by the petitioners for amendment of written statement was dismissed.
2. Plaintiff/Brijeshwar Swaroop filed a suit against the defendants for permanent injunction, restraining the defendants from interfering in the ownership and possession of the plaintiff over the suit land. Plaintiff claimed himself to be owner in possession of the suit land by virtue of sale deed dated 25.09.1957 and is continuing as such in the revenue record viz. jamabandis for the year 1960-61 onwards.
3. Plaintiff alleged that under the garb of filing of a civil suit titled Anil Aggarwal v. Brijeshwar Swaroop etc., defendants have started interfering in the peaceful possession of the plaintiff over the suit property. The suit was filed on 22.11.2011 and the same was contested by the defendants.
4. An application under Order 6 Rule 17 read with Section 151 CPC was filed by the defendants for amendment of the written statement filed by defendants No.2 and 3 on the ground that in para No.4 of preliminary objection of the written statement words "being joint Hindu family property" were inadvertently omitted and also left out from para No.1 on merits. The words "being joint Hindu family property" are claimed to be incorporated in the pleadings of the written statement. In para No.1 of the reply of the written statement, words "The para No.1 of the plaint is totally wrong and hence denied" are sought to be pleaded with replacement of para No.1 by the proposed amendment.
5. The application was contested by the plaintiff.
6. Trial Court while dealing with the application has noticed that the proposed amendment was very much in the knowledge of the applicant/defendants as defendant No.2 is an Advocate for himself as well as on behalf of defendants No.1 and 3 and has been representing them in the litigation. The proposed amendment is stated to be not related to the facts and circumstances of the case and no new facts can be allowed to be inserted by way of proposed amendment as it would change the nature of the suit.
7. The application has been preferred selectively by defendants No.2 and 3 only, whereas defendant No.1 has been kept aloof. The piecemeal application for amendment in the absence of defendant No.1 was opined to be illegal. The filing of application after about 3 and half years of filing of the original written statement was considered to be not justified, particularly when the case was fixed for defendants' evidence. Defendants have already availed seven effective opportunities to conclude their evidence. Evidence of one of the witness has already been concluded and examination-in-chief of other witnesses have also been recorded. The present application has been filed only on the pretext of further elaboration of facts and stand taken by the defendants in the original written statement. Plaintiff witnesses have already been cross examined by the defendants and no such leverage can be granted by the Court for amendment at this stage.
8. The Court also noticed the fact that in a suit titled Anil Aggarwal v. Brijeshwar Swarup etc, the plaint had already been rejected and defendant No.1 herein was the counsel representing the said suit on behalf of Anil Aggarwal. On that score, it was opined that the litigation was very much in the knowledge of the defendants. Cumulative effect of all those observations of the trial Court resulted in dismissal of the suit for amendment of the written statement.
9. I have heard learned counsel for the parties.
10. Learned counsel for the petitioners relied upon Mahila Ramkali Devi and others v. Nandram (D) through LRs and others, 2015(4) Law Herald (P&H) 2839 (SC) and contended that there is no impediment against an Appellate Court to permit amendment of the pleadings so as to enable a party to raise a new plea. Just relief cannot be refused merel
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