Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anmol Rattan Singh
CR No.4120 of 2013 (O&M)
Kulwant Singh & Anr,
v.
Balbir Kaur
{Decided on 25/09/2018}
(B) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Written Statement – Document that was sought to be relied upon was not available with the petitioners, the amendment, even in terms of the proviso to Order 6 Rule 17, could not be allowed. (Para 13)
Even if this Court were to accept that the petitioners, despite due diligence, did not have knowledge of the decree in their favour when they were very minor children, and on that ground an amendment in their written statement may be permissible even at the appellate stage in terms of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, however, as already said, in the circumstances that the decree itself is not possible to be proved, it not being available at all (presuming that it had been passed in 1963 as contended), the amendment would only reopen the entire lis from the initial stage.
(C) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Written Statement – Revision – Court in a revision petition against the impugned order, would not go into the merits of the evidence sought to be led and only on whether the amendment could be allowed at the stage of the first appeal. (Para 15)
(D) Civil Procedure Code, 1908, O.6 R.17 – Amendment of Written Statement – Once it has been seen by High Court that the basis of the amendment itself is something which is not provable by the petitioners and consequently, allowing such amendment would only mean virtually a fresh start of the litigation – Application held to be rightly dismissed. (Para 15)
Mr. Anmol Rattan Singh, J. - By this revision petition, the petitioners, who were defendants in the suit filed by the respondent-plaintiff (their sister), challenge the order of the learned appellate Court dated 01.06.2013, by which the petitioners’ application under Order 6 Rule 17 of the Code of Civil Procedure, seeking permission to amend their written statement, was dismissed.
2. In her suit, the respondent-plaintiff has sought a decree of declaration to the effect that she is owner in joint possession of the suit property to the extent of a 1/3rd share therein, the said property having previously been in the ownership of their father, Puran Singh, and therefore it devolved equally upon his three children, after his death.
She also challenged the validity of the will executed by their late father, dated 29.03.1981, as also the will stated to be executed by the mother of the parties on 10.05.1988.
3. The present appellants in the written statement filed by them admitted their father to have been the owner of the suit property but claimed that it had been bequeathed to them by their parents vide the aforesaid two wills. Hence, they claimed to be owners in possession of the suit property, to the exclusion of the respondent.
4. The suit was partly decreed by the trial Court, to the extent that the will executed by Puran Singh was disbelieved, whereas the will executed by Dalip Kaur was held to be a valid will, with the respondent-plaintiff therefore declared to be the owner in joint possession, to the extent of not a 1/3rd but a 1/4th share in the suit property, as had been described in the head note of the plaint.
5. The petitioners challenged the said judgment and decree before the learned first appellate Court (Additional District Judge, Ludhiana), and during the pendency of the appeal, the application under Order 6 Rule 17 CPC was filed, seeking that they be allowed to take a new plea by way of an amendment to their written statement, such plea being that while they were minors, their father Puran Singh having sold the property on 22.07.1960 to one Balwant Singh, the said sale was challenged by them (present petitioners-defendants) through their next friend and guardian, by instituting a suit of preemption, which was decreed in their favour by the Court of the learned Sub Judge Ist Class, Jagraon, on 01.05.1963.
Mutation no.3666 was subsequently entered in the revenue record on the basis of that decree. However, the petitioners further contended that they were earlier unaware of such mutation being sanctioned and therefore could not raise the said plea in their original written statement and as a matter of fact, they had come to know of the previous decree dated 01.05.1963 only in the month of March 2007 and consequently sought to amend the written statement to bring on record the aforesaid facts. (It is to be noticed at this stage that the suit was instituted on 18.01.2001, with the appeal filed against the judgment and decree in that suit (dated 07.03.2007) instituted on 20.04.2007).
6. The respondent-plaintiff having filed a reply to the aforesaid application under Order 6 Rule 17, took a stand (as per the impugned order) that it had been only filed to delay the decision in the appeal and that the application itself was delayed, with the appellants also estopped by their own act and conduct from filing it. The facts as contended by the petitioners were denied by her, other than the decision of the suit in her favour (the judgment which was under appeal).
7. The learned appellate Court while observing that though as a general rule amendment of pleadings should be liberally allow with technicalities of law not hampering the administration of justice, however, after a party to a lis made an admission of a fact, that party could not be permitted to withdraw the admission and take a completely inconsistent and in fact a mutually destructive plea by way of amended pleadings.
8. Having observed as above, that Court we
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
