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1997 DIGILAW 293 (HP)

KAWALJIT SINGH v. HARBHAJAN SINGH

1997-07-22

KAMLESH SHARMA

body1997
JUDGMENT KAMLESH SHARMA, J.— Petitioners-defendants are successors-in- interest of late Kartar Singh Duggal and respondents plaintiffs are the successors-in-interest A of late Mool Singh. Respondents-plaintiffs filed civil suit for specific performance of agreement dated 10-1-1958 whereby late Kartar Singh Duggal had agreed to sell the property to late Mool Singh bearing evacuee No. 131/A, measuring 2534 Sq, yards situated in Garden View, Cart Road, Shimla, for a total consideration of Rs. 4,837/8 annas out of which an amount of Rs. 2500/- was paid as earnest money. 2. The petitioners-defendants resisted the suit on the ground that the agreement was illegal, void and inoperative. According to them, it was an act of undue influence, mis-representation of fact and fraud. Petitioners, who were defendants No. 1 to 4, including Avtar Singh Duggal son of Kartar Singh Duggal, who has since died, took up the stand in paragraph-3 of their written statement that sale consideration as claimed by the plaintiffs is not just and equitable and no such payment was made to late Kartar Singh Duggal towards sale consideration. It is also pointed out that late kartar Singh Duggal could not enter into an agreement for sale as he himself was not the owner at the time of execution of the said agreement According to them, the plaintiffs being non-agriculturists were not eligible to acquire the suit property in the State of Himachal Pradesh. Similarly, the petitioners, who were defendants No. 5 to 7 in the suit, raised one of the preliminary objections besides others that the agreement to sell was void for uncertainty and its enforcement would be against public policy and law. Even if it is proved to have been executed it is highly unfair and oppressive. The plea of delay and laches was also taken as Kartar Singh Duggal has died in 1970 whereas the suit was brought in 1987. In reply to Paragraph-3 of their written statement it is stated that, "In action on the part of Shri Mool Singh is also a strong circumstance to infer that there was no agreement and even if there was any, the-same was obtained by him by deceiptful means and mis-representation. In reply to Paragraph-3 of their written statement it is stated that, "In action on the part of Shri Mool Singh is also a strong circumstance to infer that there was no agreement and even if there was any, the-same was obtained by him by deceiptful means and mis-representation. "Therefore, from the perusal of the written statement it is clear that the petitioners-defendants have not denied the execution of the agreement to sell and have not taken the stand that it does not bear the signatures of late Kartar Singh though the photo-copy of agreement to sell was filed alongwith plaint which bears the signatures of late Kartar Sngh Duggal as well as his son the original defendant No. 2 Avtar Singh Duggal. 3. Admittedly, the trial of the suit is at the final stage and the petitioners-defendants closed evidence on 4-7-1995. Thereafter, they filed an application for additional evidence under Order 18 Rule 17 CPC which was dismissed on 8-4-1996 and the Civil Revision preferred by them in this Court was withdrawn on 7-11-1996. The petitioners defendants also filed further application under Order 6 Rule 17 CPC for amendment of the written statement to specifically deny the execution of the agreement to sell by late Kartar Singh Duggal in favour of late Mool Singh and to take the plea that the document of agreement to sell appears to be forged with an ulterior motive to grab their property as it does not bear the signatures of late Kartar Singh Duggal. The reason for moving such an application at such a late stage was that they were not conversant with the signatures of late Kartar Singh Duggal and had come to know the same when one of them had inspected the records of Rehabilitation Department on 25th July, 1995, in order to move the application for obtaining certified copies of some documents to be filed alongwith their application for additional evidence under Order 18 Rule 17 CPC. The said application for amendment of written statement under Order 6 Rule 17 CPC was dismissed on 12-3-1997. Hence, the present revision petition. 4. This Court has heard learned counsel for the parties and gone through the record. The said application for amendment of written statement under Order 6 Rule 17 CPC was dismissed on 12-3-1997. Hence, the present revision petition. 4. This Court has heard learned counsel for the parties and gone through the record. No doubt the Court has very wide powers in allowing the amendment of pleadings if such amendments are necessary for the purpose of determining the real question in controversy between the parties and in the case of written statements, the Courts are very liberal in allowing the amendment yet at the same time such amendment of pleadings cannot be allowed as to change the very nature of the case by introducing altogether a new cause of action or the subject matter of the controversy in suit. It is permissible to a party to take alternative or consistent pleas and either to withdraw or explain its admission originally made but it cannot completely change the nature of their original pleadings by introducing altogether a new case by way of amendment. See Mis. Modi Spinning & Weaving Mills Co. Ltd and another v. M/s. Ladha Ram & Co., AIR 1977 SC 680, Haji Mohammed Ishaq Wd S.K. Mohammed and others v. Mohamed Iqbal and Mohamed Ali* Co., AIR 1978 SC 798 and Mis. Bansi Lal Ganpat Rani v. Bhoj Raj and another, AIR 1980 Himachal Pradesh 39 So far, the case in hand is concerned, no doubt by way of amendment only an alternative plea is intended to be taken that the agreement to sell was not executed as it does not bear the signatures of late Kartar Singh, which was not specifically taken in the first instance and it would have been allowed in the normal course but being malafide and preferred when the suit is at the final stage of argument after protracted trial for about 10 years it has rightly been rejected by the trial Court. It does not lie in the mouth of petitioners -defendants that they were not conversant with the signatures of late Kartar Singh who was their father/grand father and they could not verify his signatures before 25th July, 1995 when one of them inspected the records of Rehabilitation Department wherein they found the signatures of late Kartar Singh. It does not lie in the mouth of petitioners -defendants that they were not conversant with the signatures of late Kartar Singh who was their father/grand father and they could not verify his signatures before 25th July, 1995 when one of them inspected the records of Rehabilitation Department wherein they found the signatures of late Kartar Singh. It is not in dispute that a photocopy of agreement to sell was already filed by the respondents-plaintiffs alongwith their plaint which bore the signatures of late Kartar Singh Duggal as well as original defendant No. 4 Avtar Singh Duggal yet in the written statement filed by original defendants No. 1 to 4 the stand was not taken that the agreement to sell in question was not executed and the signatures thereon are not of late Kartar Singh Duggal. At least original defendant No. 4 Avtar Singh Duggal who was present at the time of execution and had signed the agreement to sell could take this plea. Even when one of the respondents-plaintiffs appeared as PW-1 and stated that the agreement to sell was signed by late Karter Singh Duggal and Avtar Singh Duggal he was not cross-examined that signatures were not of late Kartar Singh Duggal and Avtar Singh Dugga. Similarly, witnesses PW-3 and PW-4 who identified the signatures of other witnesses to the agreement to sell were also not cross-examined to deny the signatures of late Karter Singh Duggal and Avtar Singh Duggal. For the first time, this plea was taken when DW-1 was examined on 4-7-1995. It may be pointed out that in the meantime Kartar Singh Duggal had also died, which also belies their averment in the application that they had verified the signatures of Kartar Singh Duggal from the record of Rehabilitation Department when one of them inspected it on 25-7-1995. It may be pointed that in the meantime Avtar Singh Duggal was no more, who during his lifetime, neither denied his signatures nor that of late Kartar Singh Duggal, his father. Further the application for additional evidence under Order 18 Rule 17 CPC was dismissed on 8-4-1996. In this background, this Court has no hesitation to hold that the applications for amendment of written statement of petitioners-defendants are not bona fide and their only purpose is to delay the trial of the suit which is pending since 1987. Further the application for additional evidence under Order 18 Rule 17 CPC was dismissed on 8-4-1996. In this background, this Court has no hesitation to hold that the applications for amendment of written statement of petitioners-defendants are not bona fide and their only purpose is to delay the trial of the suit which is pending since 1987. Therefore, the trial Court has rightly rejected the applications for amendment of written statement. 5. Learned counsel appearing for the petitioners-plaintiffs has relied upon the judgment of this Court in Sh. Purshotam Dass and another v. Smt. Shakuntla Devi and others, 1994 (2) Shim. LC. 459 which reiterates the proposition that admission made by a party may be withdrawn and may be explained away, with which there is no dispute. Learned counsel has also referred to a judgment of Supreme Court in Akshaya Restaurant v. P. Anjanappa and another, 1995 Supp (2) SCC 303 wherein the learned Judges have again reiterated that admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition which is also a settled proposition of law but the ratio of these judgments are not applicable to the facts and circumstances of the present case as discussed hereinabove. The learned counsel referring to another judgment of this Court in Hari Dass and others v. Kali Dass, 1979 Shim. L.C. 157 has further submitted that while considering the application for amendment the Court is not supposed to go into the alleged falsity of the case nor to give its findings on merits of amendment as has been done by the trial Court. There is no substance in this submission as the trial Court as well as this Court has considered the context in which the applications for amendment were filed to give its findings that these are not bona fide having been filed at the final stage of the trial which has been continued for the last more than 10 years. 6. In the result, there is no merit in this revision petition and it is rejected. No order as to costs. Revision Petition dismissed.