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2002 DIGILAW 447 (PNJ)

Attar Singh v. Surinder Singh

2002-04-24

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 22.8.2001 passed by the Civil Judge (Junior Division), Bahadurgarh, dismissing the application of the plaintiff-petitioner filed under Order 6 Rule 17 CPC, seeking the amendment of the plaint. The application has been dismissed by the Civil Judge on the ground that it would amount to withdrawing admission which the plaintiff-petitioner himself has made while appearing as his own witness. The amendment sought to be incorporated has been specified in para 3A of the application. Para 3A read as under :- "3A. That the defendant No. 1 has occupied the plot of plaintiff unlawfully bearing khasra No. 374/2 measuring 9 Marlas and marked by letters A.B.C.D. in plaintiff site plan. Out of said plot the defendant occupied portion A.B.I.H. on 15.7.98 and remaining portion marked by letters C.D.H.I. during the pendency of suit hence defendant No. 1 is in possession of entire plot No. 374/2 unlawfully." 2. The Civil Judge has dismissed the application by observing that in the plaint, there was admission by the plaintiff-petitioner with regard to the whole property including the plot and so was in his statement when he appeared as his own witness. The order passed by the Civil Judge, reads as under :- "The plea of applicant-plaintiff that the respondent No. 1 occupied the portion marked by letters ABIH only 2/3rd days prior to the institution of the present suit and remaining portion marked by letter CDHI during the pendency of the present suit, is baseless and not tenable in the eyes of law as plaintiff-applicant Attar Singh who has been examined as PW1 has admitted in his cross examination conducted by learned counsel for the defendants, that defendant-respondent Surinder has already took forcible possession of the house/disputed site 2/3 days before the institution of the present suit. It appears that the plaintiff was not in possession of the disputed house at the time of the filing of the suit. In the amended plaint, entire claim of the plaintiff that dis-possession took place after filing of the suit whereas in cross-examination, the plaintiff- applicant admitted to have been dispossessed well before filing of the suit. It is not desirable to allow the plaintiff to amend suit so as to incorporate in pleadings a factual position contrary to plaintiffs own statement recorded on oath. It is not desirable to allow the plaintiff to amend suit so as to incorporate in pleadings a factual position contrary to plaintiffs own statement recorded on oath. Reliance in this regard can be placed upon Mrs. Sharan Arora v. Parkash Kaur and others, 2000(2) PLJ 548 , Jagmal Singh v. Smt. Mehma Devi, 1999(1) SLJ 437 and M/s Bharat Coking Coal Limited v. Raj Kishore Singh and another, 2000(2) SLJ 1514." 3. I have heard Mr. Kulvir Narval, learned counsel for the plaintiff- petitioner and Mr. S.S. Ahlawat, learned counsel for defendant-respondent No. 1 and have gone through the record carefully. 4. Mr. Narval has argued that there is no doubt about the forcible possession of the house having been taken by defendant-respondent No. 1, which was admitted. He has not admitted the possession with regard to the plot. Therefore, no admission would be made either in the plaint or in the statement made by the plaintiff-petitioner. On the other hand Mr. Ahlawat, learned counsel for the defendant-respondent No. 1 has argued that allowing amendment at this stage, would change the nature of the whole suit, especially when the suit is at the rebuttal stage and it would amount to allowing withdrawal of an admission. 5. Having heard learned counsel for the parties, I am of the considered view that the amendment sought by way of adding paragraph 3A would not amount to withdrawal of an admission as incorporated by way of amendment i.e. the area of the plot regarding which the admission has not been made. Moreover, the amendment can be allowed at any stage including the appellate stage. The Honble Supreme Court in the case of "Prem Bakshi & Others v. Dharam Dev & Others", JT 2002(1) SC 34 has held that amendment of pleadings should ordinarily be allowed because the other side is not prejudiced since opportunity to controvert the averments made by way of amendment is afforded. It is only subject to one condition that such an amendment is considered necessary for deciding the issues raised in the suit. The amendment sought to be incorporated by way of adding para 3A fulfils that condition too. For the reasons recorded above, this revision petition is allowed. The plaintiff-petitioner shall be permitted to amend the plaintiff. However, it shall be subject to the payment of Rs. 2000/- as costs to defendant-respondent No. 1. The amendment sought to be incorporated by way of adding para 3A fulfils that condition too. For the reasons recorded above, this revision petition is allowed. The plaintiff-petitioner shall be permitted to amend the plaintiff. However, it shall be subject to the payment of Rs. 2000/- as costs to defendant-respondent No. 1. The cost shall be paid before the next date of proceedings. Revision allowed.