Dismissed

Harvinder Kaur and Anr. v. Gagan Gupta

Punjab & Haryana HC1 May 2009CR/2449/2009

Case brief

AI extract

What is this about?

The High Court dismissed a defendants' revision petition challenging the trial court's rejection of an amendment to the written statement. The court held that the amendment was introduced late, contradicted earlier pleas, and was not sought with due diligence.

What did the court decide?

The revision petition was dismissed; the trial court's order rejecting the amendment application stands affirmed.

Harvinder Kaur and Anr. Vs Gagan… — Contract and Commercial Disputes | Punjab & Haryana HC (2009)

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Civil Revision No.2449 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.2449 of 2009 Date of Decision:01.05.2009

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Harvinder Kaur & anr.

....petitioners

Versus

Gagan Gupta

.....respondent

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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Present: Mr.H.N.Mehtani,Advocate for the petitioners

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RAKESH KUMAR GARG J.

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This is defendants' revision petition challenging the order dated 07.04.2009 passed by Additional Civil Judge(Senior Division) Malerkotla, whereby application under Order 6 Rule 17 filed by the petitioners seeking amendment of the written statement was rejected.

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As per the averments made in this application, the plaintiff/respondent filed Civil Suit dated 05.03.2003 for possession by way of specific performance of agreement to sell dated 08.02.2002. Written statement was filed by the petitioners on 21.04.2003 pleading therein that he had borrowed a sum of Rs.50,000/- on interest from the plaintiff and required some more amount as loan for which he approached the plaintiff. Plaintiff agreed to advance further loan of Rs. 80,000/- to the defendants on the condition of execution of an agreement to sell in his favour to secure the loan amount. The defendants had no alternative but to agree to the proposal and it was agreed between the parties that on return of Rs.1,50,000/- by the defendants to the plaintiff, the plaintiff will return the alleged agreement of the defendants or the same would be got cancelled and thus in fact the defendants never agreed to sell the suit land nor they

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Civil Revision No.2449 of 2009

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received any earnest money from the plaintiff. It was further pleaded by the defendants in the original written statement that the alleged agreement was result of undue pressure and was without consideration.

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After filing of the written statement on behalf of the petitioners, the suit proceeded, issues were framed and evidence of the plaintiff-respondent was also recorded. It is further case of the petitioners that when he came to the Court compound on 17.08.2006 and when the case was fixed for his evidence he came to know that the correct facts as briefed by him to his advocate were not mentioned in the written statement. Accordingly, petitioner engaged another counsel i.e.Sh.Ujjaggar Singh Chahal, Advocate and thereafter application under Order 6 Rule 17 CPC was filed seeking amendment to incorporate that the alleged agreement to sell in question was executed by the defendants in lieu of collateral security for repayment of the loan amount in favour of the plaintiff because the transaction in dispute was a loan transaction between the parties. Moreover, the plaintiff was not in a position to give such a huge amount of Rs.3 lacs as earnest money to the defendants and further that the plaintiff had no source to give balance sale consideration to the defendants as such he was not in a position to get the sale deed executed and registered from the defendants in his favour by paying them balance sale consideration. The petitioner also wanted to add that the defendants were ready to pay the loan amount to the petitioner and also ready to get the sale deed executed and registered in favour of the plaintiff up to 09.05.2002 after receiving the balance sale consideration from him and on the sale and registration expenses borne by the plaintiff but the plaintiff failed to pay the balance sale consideration to the defendants on 09.05.2002 and in this manner it was the plaintiff who defaulted in making the payment of balance sale consideration to the defendants and to get the sale deed executed and registered in his favour by paying them

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Civil Revision No.2449 of 2009

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balance sale consideration and as such the alleged earnest money amounting to Rs.3 lacs paid by him stood forfeited as the plaintiff was not ready and willing to perform his part of agreement.

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The aforesaid application for amendment of the written statement was dismissed by the trial Court vide impugned order observing that by way of proposed amendment the defendants want to add a new plea that they were ready to execute the sale deed in favour of the plaintiff who was not ready with the balance sale consideration and thus the petitioners wanted to take a contradictory plea by way of proposed amendment. The trial Court also observed that the amendment application was filed when the plaintiff has already closed his evidence and the plaintiff had also furnished his affidavit for the purpose of examination-in-chief and it was last opportunity granted to the petitioners to conclude their evidence and the Court found that there is no reasonable ground to allow the proposed amendment by any application filed by the petitioners.

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Learned counsel appearing on behalf of the petitioners has argued that the Court has very wide power to allow amendment and the same can be allowed even after passing of the final decree if no prejudice is caused to the parties. Learned counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Peethani Suryanarayana & Anr. Versus Repaka Venkata Ramana Kishore & Ors. 2009(2)R.A.J.561 and prayed for acceptance of the revision petition allowing the petitioners to amend their written statement.

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I have heard learned counsel for the petitioners. There is no dispute with the aforesaid judgment of the Hon'ble Supreme Court. However, the same is not applicable on the facts of this case. Undisputedly, the case was almost at the fag end of the trial when this application for proposed amendment was moved by the petitioners. Moreover, by way of amendment the petitioners want to take a

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Civil Revision No.2449 of 2009

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contradictory plea. In the original written statement the defendants had pleaded that the alleged agreement was executed to secure the loan amount received by the petitioners. Whereas, in the proposed amendment in addition to the elaboration of the earlier plea the petitioners also want to add another plea that the petitioners were ready to execute the sale deed in favour of the plaintiff and in fact the plaintiff was not ready with the sale consideration to get the sale deed executed and registered in his favour. The aforesaid plea is in total contradiction of the earlier plea taken by the petitioners as earlier the petitioners have denied the agreement to sell in question and has taken the plea that it was executed only as a collateral security of a loan transaction. The fact remains that the parties have already led evidence in support of their case on the basis of their earlier pleadings and the plea which is proposed by the amendment application will necessary entail the de novo trial between the parties which will prejudice the case of the plaintiff-respondent. Moreover, the present application has been filed after the commencement of the trial. The Hon'ble Supreme Court in the case of Vidyabai and ors.versus Padmalatha & Anr. 2009(1)RCR(Civil)763 has held that the Court has no jurisdiction to allow the amendment of the pleadings after the commencement of the trial and the amendment can be allowed only if applicant can establish that despite due diligence he could not seek his remedy prior to commencement of trial.

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In the case in hand, petitioners have failed to prove that they were pursuing their remedy diligently. When the application for amendment was moved the plaintiff had already closed his evidence and even the defendants had furnished an affidavit for the purpose of examination-in-chief. A perusal of the application for amendment in the pleading filed by the petitioners would show that the only ground taken by the petitioners in this case is that they came to know that their counsel has

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Civil Revision No.2449 of 2009

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not given the true facts in the original written statement on 17.08.2006 when defendant No.1 came to the Court compound to give his statement in the Court. Admittedly, the petitioners have not filed any complaint against their earlier counsel. Nor any other action has been taken against him. The petitioners have also failed to give any explanation for not pursuing their case, rather from the conduct of the petitioners it can be clearly made out that they were not diligent while pursuing their case as they never bothered to verify the facts given in the written statement which was signed by them and thus the petitioners have failed to prove their case within the proviso of Order 6 Rule 17. Thus the petitioners were not diligent in seeking their remedy. Therefore, relying upon the Vidyabai's case(Supra), I find no merit in this revision petition.

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Dismissed.

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(RAKESH KUMAR GARG) JUDGE

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01.05.2009 neenu

Harvinder Kaur and Anr. v. Gagan Gupta

Case brief

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Harvinder Kaur and Anr. v. Gagan Gupta

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