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2003 DIGILAW 687 (PNJ)

Ajit Singh v. Sulakhan Singh

2003-05-13

NIRMAL SINGH

body2003
Judgment Nirmal Singh, J. 1. This revision has been directed against the order dated 5.6.2002 passed by Civil Judge (Senior Division) Gurdaspur vide which the application filed by the respondent for the amendment in written statement has been allowed. 2. The facts as pleaded in the plaint are that petitioner Ajit Singh has filed a suit for possession of the land measuring 11 kanals 2 marlas situated in the revenue estate of village Saraspur against the defendant Sulakhan Singh. The plea of the plaintiff-petitioner is that the land has been allotted to him alongwith other land in the partition proceeding vide the order of Assistant Collector, 1st Grade, Gurdaspur and petitioner has been delivered symbolic possession of the land allotted to him in partition. The respondent who is son of the petitioner has been cultivating the suit land only in the capacity of the licencee. When the petitioner went to take actual delivery of possession of the suit land through Girdawar Halqa, the respondent obstructed the delivery of possession and refused to hand over the possession of the suit land and a suit for possession of land has been filed. The respondent has sought the amendment by pleading in the written statement that he is possession of the suit land as a tenant since 1984 and the Khasra Girdwaries from Sauni 1985 onwards are in his favour and he is shown as Gair Dakhilkar. He has also pleaded that he has obtained temporary injunction against the petitioner and is in legal possession of the suit land as a tenant which is well within the knowledge of the petitioner. 3. The respondent filed an application for the amendment of written statement and in para 2 of the said application, it has been pleaded that the worked tenant has been written inadvertently and infact the respondent is in possession of the suit land being a coparcener as a suit land is coparcenary property, therefore, respondent wanted to delete the word tenant and wants to insert the word owner. 4. On notice, the petitioner contested the application and pleaded that the joint land has been partitioned amongst the co-sharers i.e., Pritam Singh, Bhagat Singh and Ajit Singh vide order passed by Assistant Collector, 1st Grade. The suit land has been fallen to the share of the petitioner as per order of partition and respondent is occupying it as a licencee. On notice, the petitioner contested the application and pleaded that the joint land has been partitioned amongst the co-sharers i.e., Pritam Singh, Bhagat Singh and Ajit Singh vide order passed by Assistant Collector, 1st Grade. The suit land has been fallen to the share of the petitioner as per order of partition and respondent is occupying it as a licencee. Whereas as per case pleaded by the respondent in the written statement is that he is occupying the suit land as a tenant and this plea has been reiterated by the respondent twice in the written statement filed by him. The petitioner has been cross examined by the respondent on the ground of tenancy. It is denied that the word tenant has been mentioned in the written statement inadvertently but it has been mentioned intentionally. It was further pleaded that the proposed amendment amounts to alteration or substitution of a new cause of action on the basis of which original defence was taken. The proposed amendment shall cause prejudice to the rights of the petitioner. The case is fixed for arguments and the amendment to the written statement would tantamount to de novo trial. 5. After hearing the counsel for the parties, the learned Addl. Civil Judge (Senior-Division) Gurdaspur vide order dated 5.6.2002 allowed the application of the respondent. 6. Aggrieved by which, present civil revision has been preferred. 7. Mr. Parveen Kumar, learned counsel appearing for the petitioner submitted that case is at the arguments stage and the respondent by way of proposed amendment wants to set up a new case and in the written statement he has taken a specific plea that he is in possession of the property as a tenant and in the amended written statement he has changed the stand and has pleaded that property is a coparcenary and he is in possession as a coparcener and not as a tenant. He submitted that when a party sets up a new case, the amendment should not be allowed. 8. On the other hand, Mr. Kuldeep Sanwal, learned counsel for the respondent contended that this civil revision is not maintainable. He contended that Section 115 Cr.P.C. has been amended and the power of High Court to entertain the revision has been curtailed, he further contended that revision against an interlocutory order is only maintainable, if by passing the order the case has been finally disposed of. He contended that Section 115 Cr.P.C. has been amended and the power of High Court to entertain the revision has been curtailed, he further contended that revision against an interlocutory order is only maintainable, if by passing the order the case has been finally disposed of. If the case is not being disposed of finally, then revision against the interlocutory order is not maintainable. In support of his contentions, he relied upon Prem Bakshi v. Dharam Dev, (2002-1)130 P.L.R. 558 (S.C.). He further contended that learned trial Court has rightly allowed the application for amendment in the written statement as the amendment is necessary for the proper adjudication of the controversy. He contended that proposed amendment is not likely to prejudice the rights of the petitioner as he has been compensated with costs of Rs. 500/-. 9. I have given thoughtful consideration to the submissions made by learned counsel for the parties and perused the record. In Prem Bakshi s case (supra) their Lordship have held as under;- "The proviso to Sub-section (1) of Section 115 puts a restriction on the powers of the High Court inasmuch as the High Court shall not under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposed of the suit or other proceedings or, (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposes of the suit or other proceedings. By way of illustration we may say that if a trial court holds by an interlocutory order that it has no jurisdiction to proceed (in) the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and therefore, it would not come under Clause (a)". 10. There is no complete bar to the maintainability of the revision against every interlocutory order. The order in question by which the amendment was allowed could not be said to have finally disposed of the case and therefore, it would not come under Clause (a)". 10. There is no complete bar to the maintainability of the revision against every interlocutory order. Their Lordships have held that where an order would occasion failure of justice or cause irreparable injury to the party against whom it is made, then revision is maintainable. Even otherwise, if an order is arbitrary, perverse, capricious, the High Court can entertain a petition under Article 227 Constitution of India to correct the illegality. 11. Now it is to be seen whether the application for amendment of the written statement would occasion a failure of justice or cause irreparable loss to the petitioner ? 12. The case was at the arguments stage, when respondents has moved the application for amendment of the written statement. Generally the courts are liberal in allowing such applications, but when a new case is to be set up by way of amendment in the written statement, then the amendment is not to be allowed. The plea set up in the application for amendment is that case property is a coparcenary property. This fact was in the knowledge of the respondent from the very beginning. So, it cannot be said that this plea could not be set up due to inadvertence. When the written statement was filed, the respondent should have taken the plea at the first instance. Allowing the amendment in the written statement at this stage amounts to de-novo trial. Under Order 6, Rule 17 CPC, no doubt, it has been provided that the court at any stage of the proceedings can allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 13. The learned trial court has not given any such finding that the respondent could not take the plea despite the due diligent. 13. The learned trial court has not given any such finding that the respondent could not take the plea despite the due diligent. As it has been observed above that trial court has allowed the application without looking the proviso to Order 6 Rule 17 of Civil Procedure Code, therefore, the impugned order cannot sustain. 14. For the reasons recorded above, the civil revision is accepted and order dated 5.6.2002 passed by Additional Civil Judge (Sr. Divn.), Gurdaspur is set aside. Parties are directed to appear before the trial court on 29.5.2003 and trial court is directed to dispose of the case expeditiously.