High Court dismissed a revision petition against an order disallowing amendment to a written statement. The amendment sought to plead coparcenary rights fixed during arguments; the Court held it caused prejudice and was not necessary for the dispute.
Revision petition dismissed; order dated 21.11.2006 upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.1232 of 2007
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.1232 of 2007
Date of Decision: 11.11.2008
Paramjit Singh ....Petitioner
Vs.
Jaswinder Singh ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Sudhir Sharma, Advocate, for the petitioner.
Mr.M.L.Saini, Advocate, for the respondent.
Vinod K.Sharma,J. (Oral)
The petitioner has challenged the order dated 21.11.2006 passed by the learned Civil Judge (Senior Division), Fatehgarh Sahib vide which application moved by the petitioner for the amendment of written statement has been ordered to be dismissed.
The plaintiff/respondent filed a suit for specific performance of agreement to sell dated 17.6.1997. It was claimed that the agreement to sell is the result of fraud, misrepresentation as the plaintiff/respondent used to get signed blank documents being a practising advocate. The amendment was sought on the plea by claiming that the suit land was co-parcenary
CR No.1232 of 2007
2
ancestral property in his hands and he has got secured right in the suit land by birth. He also sought to plead that his son and daughter have undivided interest in the land and the agreement could not be said for the benefit of the family. The petitioner also sought to plead that he had only half share in the suit land which has not been partitioned and khasra numbers which were agreed to be sold were stood mortgaged with State Bank of Patiala involving possession of his share and therefore, he was not competent to enter into an agreement to sell.
The application was contested on the plea that by way of amendment the petitioner is seeking to set up inconsistent plea which would change the nature of the suit and would further prolong the proceedings. It was further claimed that the amendment when the case is fixed for arguments could not be allowed and it was for the petitioner to show that the said amendment could be carried out in spite of due diligence.
Learned lower court observed that the plea of fraud has already been taken. The court also noticed that the fact that the property was coparcenary was within knowledge of the petitioner and therefore, the same was not permissible at this stage. The court also observed that in case the amendment sought is allowed it would result in de novo trial which would cause prejudice to the plaintiff/respondent and therefore, could not be allowed and thus, dismissed the application.
The learned counsel for the petitioner contends that mere delay in filing the application could not be a ground to deny the same. In support of this contention reliance has been placed on the judgment of this court in the case of Ujjagar Singh and others Vs. Mann Singh and others 2004 (1) Civil and Rent Judicial Reports 531.
CR No.1232 of 2007
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Learned counsel for the petitioner also placed reliance on the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors. 2006 (2) RCR (Civil) 577 to contend that it is mandatory for the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
Learned counsel also placed reliance on the judgment of this court in the case of Jai Singh Vs. Smt.Sukhjit Kaur (2007-4) PLR 706 to contend that amendment sought for elaborating the factum of fraud could not be said to be inconsistent and contrary to the stand earlier taken and therefore, the application deserves to be allowed.
On consideration of the matter, I find no force in the contentions raised by the learned counsel for the petitioner.
It may be noticed that in the present case the petitioner is seeking to raise altogether a new plea with regard to the property being coparcenary in the hands of the petitioner. It is also to be noticed that the amendment is sought when the case is fixed for arguments. Learned trial court was justified to hold that the amendment sought was not such which was not in the knowledge of the petitioner when the written statement was filed. The application has not been dismissed merely on the ground of delay but on the ground that the amendment if permitted would cause prejudice to the plaintiff/respondent and thus, the judgment of this court in the case of Ujjagar Singh and others Vs. Mann Singh and others (supra) has no application.
Similarly, the judgment of Hon'ble Supreme Court in the case
of Rajesh Kumar Aggarwal & Ors. (supra) would also not apply to the
CR No.1232 of 2007 4
facts of the present case as the amendment sought cannot be said to be necessary for determining the real question in the controversy. Specific performance is sought on the basis of an agreement to sell and the amendment sought, therefore, is not necessary for adjudication of the real controversy.
It also cannot be said that the amendment sought is merely to elaborate the facts to attract the judgment of this court in the case of Jai Singh Vs. Smt.Sukhjit Kaur (supra).
Consequently, finding no merit in the present revision petition the same is ordered to be dismissed.
11.11.2008 rp
(Vinod K.Sharma) Judge
2 issues framed by the court
Whether an amendment to pleading raising a new plea of coparcenary interest is maintainable when the case is fixed for arguments.
Whether the lower court was justified in disallowing amendment to avoid de novo trial and prejudice to the respondent.
Colour shows how this judgement treated each authority
Ujjagar Singh and others Vs. Mann Singh and othersDistinguished¶20
Ujjagar Singh and others Vs. Mann Singh and others 2004 (1) Civil and Rent Judicial Reports 531
Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors.Distinguished¶23
Rajesh Kumar Aggarwal & Ors. Vs. K.K.Modi & Ors. 2006 (2) RCR (Civil) 577
Jai Singh Vs. Smt.Sukhjit KaurDistinguished¶24
Jai Singh Vs. Smt.Sukhjit Kaur (2007-4) PLR 706
2 provisions across 2 enactments
Paramjit Singh
Jaswinder Singh
Vinod K.Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
