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2000 DIGILAW 233 (PNJ)

Lal Singh v. Gurdial Singh

2000-02-28

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. Gurdial Singh plaintiff filed suit for joint possession against Lal Singh claiming half share of the land measuring 47 kanal 3 marla as recorded in jamabandi for 1984-85 of village Bahona, on the allegations that land measuring 47 kanal 3 marla was owned by one Dal Singh son of Bika Singh who was father of Gurdial Singh and Lal Singh. Defendant Lal Singh contested the suit urging that he is the son of Dal Singh while Gurdial Singh was not the son of Dal Singh. Gurdial Singh is not recorded as son of Dal Singh in the revenue record. It was further urged that he and Nihal Kaur are the only children of Dal Singh. Gurdial Singh is not the off spring of Dal Singh. He is shown as pichhlag of Dal Singh in the revenue record. 2. Plaintiffs suit was decreed by the Subordinate judge IInd Class Moga. Lal Singh went in appeal to the District Court at Faridkot. 3. Along with the memo of appeal, Lal Singh put in an application under Order 6 Rule 17 CPC whereby he prayed for leave of the court to permit him to amend his written statement so that he could plead that Dal Singh had executed registered will dated 13.5.1975 in his favour and that mutation No. 5725 had been sanctioned in his favour on the strength of that will to the exclusion of Gurdial Singh on account of love and affection for him and in lieu of the services being rendered by him (Lal Singh) to testator Dal Singh. It was alleged in the application for amendment that he had proved this will by examining Head Registration Clerk and one Atma Singh Lambardar the attesting witness of the said will and that the court refused to take this evidence into account saying that the will in question could not be looked into as the same was not pleaded in the written statement. It was alleged that non-consideration of the evidence led by him on a mere technical ground has brought about serious miscarriage of justice. It was further alleged that he had shown the certified copy of the mutation as well as the certified copy of the will to his counsel in the trial court but he failed to plead this fact in the written statement due to sheer omission/inadvertence. It was further alleged that he had shown the certified copy of the mutation as well as the certified copy of the will to his counsel in the trial court but he failed to plead this fact in the written statement due to sheer omission/inadvertence. This application was opposed by Gurdial Singh saying that at such a belated stage when the trial is over, this amendment should not be allowed as if this amendment is allowed, that will work injustice to him. No amendment should be allowed which has the effect of working injustice to the other party which cannot be compensated for by costs with the allowing of amendment. 4. Additional District Judge, Faridkot declined this application for amendment vide order dated 30.9.1999. Aggrieved by this order, Lal Singh has come up in appeal to this Court. Through the proposed amendment, the defendant-appellant wanted to plead that Dal Singh had executed registered will in his favour dated 13.5.1975 and he had led evidence to prove the due execution of the will by examining Head Registration Clerk of the office of the Sub Registrar and one Atam Singh Lambardar who is one of the attesting witnesses of the will. Factum of will executed by Dal Singh in his favour was not adjudicated upon by the Subordinate judge as will had not been set up in the written statement. Subordinate judge ignored that evidence saying that said will had not been set up in the written statement. He took this view keeping in view the principle that evidence cannot be considered on a plea which was never raised in the pleadings. 5. In my opinion, Additional District Judge went completely off the track marked by the cannons of judicial prudence when he refused this amendment to the appellant-defendant in the written statement who wanted to set up registered will said to have been executed by Dal Singh in his favour on 13.5.1975. Rules of procedure are mere handmaids of justice. Procedure is meant to advance justice and not impede justice. Gurdial Singh claimed to be entitled to share the property half and half with Lal Singh saying that both of them are the sons of Dal Singh. Lal Singh contested him claim saying that Gurdial Singh was not the son of Dal Singh instead he was pichhlag. Dal Singh had two children namely Lal Singh and Nihal Kaur. Gurdial Singh claimed to be entitled to share the property half and half with Lal Singh saying that both of them are the sons of Dal Singh. Lal Singh contested him claim saying that Gurdial Singh was not the son of Dal Singh instead he was pichhlag. Dal Singh had two children namely Lal Singh and Nihal Kaur. Through the proposed amendment, Lal Singh wanted to take up an additional ground of attack namely that Dal Singh had executed registered will in his favour on 13.5.1975 and that he is sole heir of Dal Singh on account of that will. He should have been allowed to plead this additional fact by way of amendment of the written statement. Merely because this fact was known to the defendant and his counsel and there was omission on their part to incorporate this fact in the written statement, the defendant should not be barred from pleading this fact. Courts of law are meant to decide the rights of the parties and do them justice. They are not meant to impose discipline on the parties in the conduct of their cases by them. 6. Faced with this position, learned counsel for the respondent Gurdial Singh submitted that it is not permissible to introduce by way of amendment facts which would completely change the nature of the original defence. In support of this submission, he drew my attention to Haji Mohammed Ishaq v. Mohamed Iqbal Mohanmed Ali and Co., AIR 1978 SC 798. 7. Suffice it to say, proposed amendment will enable the court to do complete justice in the case. Bare technicalities should not stand in the way of the court doing justice in the case. So, this revision is allowed. Defendant-petitioner is allowed to amend the written statement and incorporate this plea on payment of Rs. 2,000/- as costs.