Amendments to pleadings should be allowed if necessary for determining the real question in controversy and do not cause injustice or prejudice to the other side.

JUDGMENT :

1. Through the present petition under Article 227 of the Constitution of India, the petitioner has invoked the jurisdiction of this Court to challenge the order dated 23.08.2021 (Annexure P-4) passed by learned Court below, whereby, an application filed by the petitioner-defendant, for seeking amendment of the written statement was dismissed.

2. The essential facts, as culled from the paper-book are that, initially, respondent No.1-plaintiff Mukesh had filed a suit against the petitioner and proforma respondent, thereby, seeking possession by way of ejectment of the land measuring 323.51 sq. yards, as detailed in the headnote of the plaint, copy whereof is Annexure P-7. The said suit was filed on the basis of the title, by virtue of sale deed dated 29.11.2012. After recording evidence of four witnesses, when the case was at the stage of recording of further evidence, an application under Order 6 Rule 17 CPC for seeking amendment of the written statement was filed by the petitioner-defendant as well as proforma respondent.

3. It is submitted by learned counsel for the petitioner that even though, in the written statement filed, the defendants, as such, had denied the ownership of the plaintiff or his vendor qua the suit property and had claimed ownership of the property in dispute, on the basis of long possession, but however, inadvertently, they could not take alternative plea that they have become owners of disputed land by way of adverse possession also and suit being barred by limitation. On this account, amendment was sought.

4. Now, to so substantiate their arguments that amendment can be allowed, at any stage and the Courts ought to be more generous in allowing the amendment of the written statement, as the question of prejudice is less likely to operate in that event and furthermore, that proposed amendment shall facilitate the Court to determine the real question of controversy between the parties, learned counsel for the petitioners have placed reliance upon judgments passed in M/s Estralla Rubber vs. Dass Estate (Pvt.) Ltd., 2001 (4) RCR (Civil) 362, Andhra Bank vs. ABN Amro Bank N.V. & Ors., AIR 2007 SC 2511, Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors., 2006 (2) RCR (Civil) 577 and Amar Singh vs. Nirmal Singh and another, 2016 (3) RCR (Civil) 192.

5. On the contrary, learned counsel for the respondent-plaintiff has assiduously submitted that the petitioner-defendant, as such, has not come to the Court with clean hands. The application for seeking amendment has been filed with malafide intention to undo the interest created in favour of the respondent-plaintiff, on the basis of clear admission, coming forth, at the behest of the petitioner-defendant. In this regard, learned counsel for the respondent has made reference to the written statement of the petitioner as well as proforma respondent, which is Annexure P-1. In the same, it is submitted that petitioner as well as proforma respondent had asserted themselves to be owner in possession of the suit property and that respondent-plaintiff has no concern with the suit property and therefore, question of title or interest, passing in the suit property, in favour of the plaintiff, does not arise. Also, it has been pointed out that at earlier instance also, the petitioner and proforma respondent had filed a suit for permanent injunction, thereby, asserting themselves to be owners-in-possession of the suit property and therein also, no such plea of adverse possession had been taken. It thus shows that the application has been filed with malafide intention to counter the right of the respondent-plaintiff.

6. It is submitted that the clear admission, coming forth, at the behest of the defendants, by way of seeking the amendment now, cannot be undone. To so substantiate his claim, learned counsel for the respondent has placed reliance upon the judgments passed in M/s Modi Spinning and Weaving Mills Co. Ltd. and another vs. M/s Ladha Ram and Co., 1977 AIR (SC) 680,