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2002 DIGILAW 534 (PNJ)

Balwant Singh v. Om Prakash

2002-05-14

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenges the order dated 16.3.2002 passed by the Additional District Judge, Panipat dismissing the application of the defendant-petitioner under Order V1 rule 17 read with Section 151 of the Code seeking amendment of his written statement. The application under Order 6 Rule 17 read with Section 151 of the Code has been filed at the stage when the appeal of the defendant-petitioner against the judgment and decree dated 4.2.1997 is pending before the Additional District Judge, Panipat. 2. Brief facts of the case necessary to decide the controversy raised in this revision petition are that the plaintiff-respondent filed a suit against the defendant-petitioner for possession of the disputed plot asserting that defendant-respondents No. 2 to 5 and their mother Smt. Chalti Devi were owners in possession of total land fully described in the head-note of the plaint. It was further alleged that in the family settlement which took place between the parties two years before the filing of the suit, to which plaintiff-respondent and defendant-respondents No. 2 to 5 and Smt. Chalti Devi were parties, the suit property fell to the share of the plaintiff-respondent. Thereafter Smt. Chalti Devi died leaving behind the plaintiff-respondent as well as defendant-respondents No. 2 to 5. The defendant-petitioner got the suit land from the plaintiff-respondent for a period of six years as licensee for his residence and agreed to vacate the same after expiry of six years. The defendant-petitioner thereafter raised construction and has been residing with his family members in that house. In May, 1992 when the period of lease of 6 years had expired, plaintiff-respondent requested the defendant-petitioner to remove the construction and hand over the vacant possession of the suit land to the plaintiff-respondent. However, the defendant-petitioner refused to do so resulting into filing of the suit. 3. Defendant-petitioner did not deny the fact that the land was owned by defendant-respondents No. 2 to 5 and their mother Smt. Chalti Devi. He also did not controvert the family settlement between all of them, yet he asserted that he had purchased the suit land from the plaintiff-respondent in the year 1995 and it was never taken on lease. 3. Defendant-petitioner did not deny the fact that the land was owned by defendant-respondents No. 2 to 5 and their mother Smt. Chalti Devi. He also did not controvert the family settlement between all of them, yet he asserted that he had purchased the suit land from the plaintiff-respondent in the year 1995 and it was never taken on lease. The Trial Court after framing various issues and recording detailed evidence decreed the suit in favour of plaintiff-respondent directing defendant-petitioner to remove the construction from the plot in dispute within 60 days from the date of passing the judgment and decree dated 4.2.1997 and hand over its vacant possession to the plaintiff-respondent. Against the judgment and decree dated 4.2.1997, the appeal filed by the defendant-petitioner is pending before the Additional District Judge, Panipat. It is during the pendency of the appeal that an application under Order 6 Rule 17 read with Section 151 of the Code seeking amending of the written statement filed in the Civil Suit No. 138/1 decided on 4.2. 1997 was filed. 4. In the application seeking amendment of the written statement filed by the defendant-petitioner it has been averred that he firstly purchased bara bearing khasra No. 505 measuring 0 kanal 11 marlas from Om Parkash in year 1985 and in 1986 he raised huge construction over the suit land and no objection was raised by any co-sharer. He has further asserted that the plaintiff-respondent was estopped by his own act and conduct from filing the suit. According to the defendant-petitioner, plaintiff-respondent Om Parkash has played a fraud with him by representing himself as exclusive owner in possession of the whole bara. It was further alleged that during the pendency of the suit Om Parkash played a fraud with the Court as well as with defendant-respondents No. 2 to 5 because defendant-respondents No. 2 to 5 never engaged any counsel nor they ever filed any written statement on their behalf. It is alleged that fictitious written statement was filed by plaintiff-respondent forging the signatures of defendant-respondents No. 2 to 5. It has further been asserted that no family settlement has been entered into between the parties as alleged. Therefore, the defendant-petitioner requested that he may be permitted to make the amendment which was proposed as under : 1. It is alleged that fictitious written statement was filed by plaintiff-respondent forging the signatures of defendant-respondents No. 2 to 5. It has further been asserted that no family settlement has been entered into between the parties as alleged. Therefore, the defendant-petitioner requested that he may be permitted to make the amendment which was proposed as under : 1. That in P.O. (preliminary objection) after para No. 4, paras 5, 6 and 7 may be allowed to be added as under : 5. That the suit is liable to be dismissed because the value of the suit for court fee fixed has been wrongly assessed and the plaint has been insufficiently stamped. The market value of the land building is above 5-6 lacs whereas the value of the vacant land is above Rs. 25,000/-. 6. That the plaintiff is estopped from filing the present suit by his own act and conduct as he himself has been seeing the raising of the construction of the building by Balwant Singh defendant who has spent a huge amount over his buildings. 7. That Om Parkash has played a fraud with Balwant Singh and he has misrepresented the facts regarding the owner of Bara in suit and no family partition ever took place between the co-owners of the said Bara. So much so, plaintiff is also managed to file the false and bogus written statement on behalf of Jagat Singh, Surat Singh and Hukam Kaur." ii) That in the reply on facts the para No. 2 may be allowed to the amended as under : - "That para No. 2 of the plaint is wrong and denied. No family partition took place about 8 years back and the said bara was never given to the plaintiff exclusively by the other co-owners. The applicant has purchased the shares of Jagat Singh and Surat Singh vide sale deed dated 28.5.2001 registered in the office of S.R. Samalkha whereas from Om Parkash it was purchased already in the year 1985. The plaintiff has already raised construction and is in possession over purchased portion of the bara in dispute as owner. So, plaintiff has no right to file the present suit in the present form." 5. The plaintiff has already raised construction and is in possession over purchased portion of the bara in dispute as owner. So, plaintiff has no right to file the present suit in the present form." 5. The application filed under Order 6 Rule 17 of the Code was hotly contested and the Additional District Judge, Panipat dismissed the same on the ground : (i) that the defendant-petitioner never raised any objection in reply to para 2 of the original plaint that the suit property never fell to the share of the plaintiff-respondent in a family settlement. On the contrary, he accepted the same and now it would not lie in his mouth to assert that plaintiff-respondent was not owner of suit property ; (ii) that the defendant-petitioner has not produced the sale deed in support of his assertion that he purchased the suit property from plaintiff-respondent in the year 1985. As the property admittedly is worth more than Rs. 100/- and could not have alienated without a registered sale deed ; and (iii) that the defendant-petitioner might have purchased rest of the portion of khasra No. 505 from Jagat Singh and Surat Singh which fact is not in controversy. 6. On the basis of afore-mentioned ground the application under Order 6 Rule 17 of the Code filed by the defendant-petitioner was dismissed. Feeling aggrieved he has approached this Court by filing the present petition. 7. Shri Rameshwar Malik, learned counsel for the petitioner has argued that law concerning amendment is extremely liberal and amendment can be allowed even at the appellate stage. In support of his proposition, the learned counsel has placed reliance on a judgment of this Court in the case of Sat Pal Singh and others v. Smt. Harminder Kaur and others, 1992 PLJ 164. Drawing my attention to para 6 of the judgment, the learned counsel has argued that there is no impediment to permitting the amendment in the pleadings even at the stage of appeal. He has further submitted that it is always permissible to make amendment of the pleadings in view of the subsequent events which have taken place after the passing of the decree. He has further submitted that it is always permissible to make amendment of the pleadings in view of the subsequent events which have taken place after the passing of the decree. For this proposition, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Prem Bakshi and others v. Dharam Dev and others, (2002-1)130 PLR 558 and Om Parkash Gupta v. Ranbir Goyal, (2002-1)130 PLR 799. Another submission made by the learned counsel is that the defendant-petitioner has cited a number of judgments before the learned Additional District Judge which has not been dealt with by him and in fact have been brushed aside. 8. I have thoughtfully considered the submission made by the learned counsel and have perused the record with his assistance. I am of the considered opinion that this revision petition is devoid of merit. Once the defendant- petitioner failed to controvert the fact that the suit property did not fall to the share of plaintiff-respondent in a family settlement he cannot now be permitted to amend his written statement to assert that plaintiff-respondent is not the owner of the suit property. Another reason for refusing to accept the submission made by the learned counsel is that he has failed to produce a copy of the sale deed in support of his assertion that he had purchased the suit property from plaintiff-respondent in the year 1985. In so far as purchasing of property from the portion of khasra No. 505 from Jagat Singh and Surat Singh it could not be made the subject matter of the controversy because there is no dispute before the Court between them and the defendant- petitioner. Therefore, it becomes patent that none of the facts are sought to be pleaded by way of amendment which may have arisen during the pendency of the suit or after the passing of the judgment and decree dated 4.2.1997. It is pertinent to mention that the suit was filed on 27.10.1995. Therefore, it becomes patent that none of the facts are sought to be pleaded by way of amendment which may have arisen during the pendency of the suit or after the passing of the judgment and decree dated 4.2.1997. It is pertinent to mention that the suit was filed on 27.10.1995. The submission made by the learned counsel that the amendment can be allowed even at the appellate stage, can hardly be doubted but such an amendment has to come within the parameters of law laid down by the Supreme Court in numerous cases, namely that no admission made is allowed to be withdrawn and the rights which have crystalised by virtue of the judgment and the decree passed by the trial Court are not taken away. It has also been held by the Supreme Court that no mutually destructive pleas are permitted to be set up. For this proposition, reliance call be placed on the judgment rendered in B.K. Narayana Pillai v. Parameswaran Pillai and another, 2000(1) SCC 712 and Shiromani Gurdwara Committee v. Jaswant Singh, (1997-2)116 PLR 648 (SC). Therefore, the revision petition is liable to be dismissed. 9. Before argument raised by the learned counsel that the Additional District Judge has failed to deal with the numerous judgments cited by the defendant- petitioner in support of his submission does not require any serious consideration because a perusal of those judgments would show that the none of those judgments laid down the principles which may come to the rescue of the defendant-petitioner. It is not necessary for the Courts to deal with every single judgment by a detailed discussion. As long as the judgments cited by the parties have been considered and found inapplicable then it cannot be claimed that the arguments raised by the defendant petitioner were not considered. 10. For the reasons recorded above, this revision petition fails and is dismissed. Petition dismissed.