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2005 DIGILAW 1090 (PNJ)

Bhajan Singh v. Sati Brahamana

2005-10-18

AJAY K.MITTAL

body2005
JUDGMENT Ajay Kumar Mittal, J. - C.M. No. 7942-CII of 2003 This is an application under Section 151 of the Code of Civil Procedure for condonation of 22 days delay in refiling the revision petition. 2. For the reasons mentioned in the application, the same is allowed and the delay of 22 days in refiling the revision petition is condoned. C.R. No. 2103 of 20037 3. The trial Court vide order dated 28.11.2002 has declined application filed by defendant No. 1-petitioner for amendment of written statement under Order 6 Rule 17 of the Code of Civil Procedure (for short "the Code"). The legality of the said order is under scrutiny in this revision petition filed by defendant No. 1. 4. The plaintiff-respondent No. 1 filed a suit for permanent injunction restraining the petitioner and respondent No. 2 from interfering in his possession over the land measuring 1 Kanal and 18 Marlas comprised in kahata No. 1386/2310, Khasra No. 141//4/1 situated at Mohalla Dashmesh Nagar, Sangrur. The plaintiff further prayed that the defendants be restrained from raising any construction on the disputed land. The defendant-petitioner contested the claim of the plaintiff and claimed ownership of the land in dispute on the basis of sale deed dated 17.6.1982. 5. The defendant-petitioner during the pendency of the suit, filed an application for amendment of the written statement and pleaded that he be allowed to take the plea that he is in possession of the disputed land since the date of its sale i.e. 17.6.1982 and now by efflux of time, he has become owner of the said land by adverse possession. 6. Counsel for the petitioner submitted that the petitioner by way of amendment of written statement is neither changing the nature of the suit nor the plea being sought to be raised by way of amendment is inconsistent with the stand already taken. According to the learned counsel, the plea now being sought to be taken is an alternative plea. The stand of the petitioner has been that he is the owner of the land in dispute and that by way of amendment, he only wants to add that he has also become owner by adverse possession. According to the learned counsel, the plea now being sought to be taken is an alternative plea. The stand of the petitioner has been that he is the owner of the land in dispute and that by way of amendment, he only wants to add that he has also become owner by adverse possession. Counsel for the petitioner laid great emphasis and submitted that the plea of adverse possession which is now sought to be raised by way of amendment should be allowed as has been held by this Court in Gulwant Kaur v. Mohinder Singh and others, AIR 1972 P&H 260 and Joginder Singh v. Darshan Singh, 1999(3) Civil Court Cases 495 (P&H). Counsel for the petitioner also placed reliance on B.K. Narayana Pillai v. Parameswaran Pillai and another, 2000(2) PLR 547 (SC) to submit that the courts should adopt a liberal approach while adjudicating upon an application for amendment under Order 6 Rule 17 of the Code. 7. On the other hand, counsel for respondent No. 1 supported the order passed by the trial Court and submitted that the plea which is now sought to be raised by the defendant-petitioner by way of amendment that he has become owner by way of adverse possession, is destructive to the plea which had already been taken by him and, therefore, the trial Court rightly rejected the prayer of the petitioner for amendment. The counsel in support of his submission placed reliance on two decisions of this Court in Jagga Singh v. Harpal Singh, 1995(2) Recent Revenue Report 239, Khushi v. Mohd. Ishq, 1992(1) (1992-1) PLR 611, a judgment of Andhra Pradesh High Court in Shaik Ghouse Mohideen & Ors. v. Punagani Erikalamma @ Settamma & Ors., 1993(3) Civil Court Cases 643 (A.P) and the decision of the Supreme Court in Arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey, (1994)2 Supreme Court Cases 29. 8. I have heard the learned counsel for the parties and have perused the record. 9. In Jagga Singhs case (supra) the plaintiff had filed a suit for possession based on title in which written statement was filed. 8. I have heard the learned counsel for the parties and have perused the record. 9. In Jagga Singhs case (supra) the plaintiff had filed a suit for possession based on title in which written statement was filed. When the case was fixed for arguments, an application was filed for amendment of written statement in which the defendant wanted to raise plea that he had become owner of the suit property by adverse possession being in possession since 1972 in the part performance of the agreement executed by the brother of the plaintiff who was a co-sharer whereas in the original written statement defence taken by him was that he was in permissive possession of the property. The plea which was sought to be taken by way of amendment was held to be destructive of the earlier plea where the possession was claimed to be in part performance of the agreement and now plea of ownership by adverse possession was claimed. 10. In Kushis case (supra), the facts as emerging were that the defendants had claimed that they have purchased the share of the plaintiff in the suit land vide registered sale deed. The trial Court had found that the sale deed was not binding on the plaintiff as he was minor at the time of executing the sale. The defendant-petitioner in appeal against the said judgment and decree of the trial Court filed an application for amendment of the written statement to incorporate the plea that they had become owner by adverse possession which was declined by the appellate Court on the ground that the same had been filed to delay the proceedings. The High Court in those facts held that the plea which the defendants wanted to take with regard to having become owner by adverse possession at a belated stage was totally inconsistent with the earlier plea and, therefore, the appellate Court was justified in rejecting the prayer of the defendant-petitioner. Similarly, in Shaik Ghouse Mohideens case (supra), in the written statement the permissive possession was initially admitted but by way of amendment it was sought to be incorporated that the defendant had become owner by adverse possession. The amendment was declined by the Andhra Pradesh High Court. Similarly, in Shaik Ghouse Mohideens case (supra), in the written statement the permissive possession was initially admitted but by way of amendment it was sought to be incorporated that the defendant had become owner by adverse possession. The amendment was declined by the Andhra Pradesh High Court. Again the Apex Court in Arundhati Mishras case (supra) had laid down that the amendment of written statement to raise a plea inconsistent with an earlier plea should ordinarily not be allowed. The cases relied upon by the learned counsel for the respondent do not apply to the facts of the present case and are clearly distinguishable. 11. Adverting to the case law relied upon by the learned counsel for the petitioner, it is noticed that the learned Single Judge of this Court in Gulwant Kaurs case (supra) had very clearly laid down as under :- "The defence under the original plea as well as under the new plea sought to be introduced by the amendment being that the defendant is the owner of the property and is in possession of the same from a particular date to the exclusion of her husband, it cannot be said that there is any change of the front in defence on the part of the defendant. The date from which the defendant claims to be in possession being the same the defence cannot be said to be based on any new set of facts. In fact it is intimately connected with the defence already taken. Also the new plea sought to be raised is not destructive of the original plea and both the pleas could have been taken up in the suit originally in the alternative." The learned Single Judge of this Court in Joginder Singhs case (supra) had held where the defendant was claiming relief on the basis of facts which had already been stated in complete elaboration in the original written statement, the plea is neither new plea nor destructive of the plea already taken. The plea of adverse possession on same set of facts was thus allowed to be taken by way of amendment in the written statement. The plea of adverse possession on same set of facts was thus allowed to be taken by way of amendment in the written statement. The Apex Court in B.K. Narayana Pillai v. Parameswaran Pillai and another, 2000(2) PLR 547 (supra) while interpreting the provisions of Rule 17 of Order 6 of the Code of Civil Procedure had laid down that the technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. The object of this Rule is that the Court should allow the amendment of pleadings which are necessary for determining the real controversy between the parties provided no injustice or prejudice is caused to the other party. The amendment sought should not be with ulterior motive to defeat the rights of the party or to delay the proceedings in any manner. 12. The petitioner in the present case has already claimed that he is owner and in possession since the execution of the sale deed i.e. 17.6.1982. By way of amendment the petitioner though maintains that the possession is from that day i.e. 17.6.1982 onwards but claims ownership by adverse possession as well. It cannot, thus, be said that there has been any change of plea on new set of facts. In the light of the above discussion, the impugned order dated 28.11.2002 is set aside and the revision is allowed. The trial Court is directed to allow the amendment in the written statement and shall thereafter proceed in accordance with law. No costs. Petition allowed.