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2006 DIGILAW 3026 (PNJ)

Bhuria Ram v. Jagan Nath

2006-07-26

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. (Oral) - This revision petition has been filed against the order passed by the learned Civil Judge (Junior Division), Samana declining the application moved under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) to amend the written statement filed by the petitioner. 2. The facts of the case are that the respondent had filed a suit for recovery of Rs. 80,000/- plus interest against the petitioner on the basis of pronote in which defendant-petitioner filed written statement in which a preliminary objection was taken to the following effect : "4. That the plaintiff has definitely played fraud with the defendant as the defendant has never borrowed any such sum nor even executed any pronote and receipt." 3. When the case was at the stage of arguments an application was moved by the petitioner seeking to amend the written statement as follows : "That the defendant wants to add the facts in the preliminary objection No. 4 in addition to existing preliminary objection No. 4 :- That the brother of the plaintiff named Sham Lal was doing the business of commission agent at Patra Mandi and the family of the defendant whose Karta is one Prithvi Ram i.e. elder brother of the defendant was the customer of above said Sham Lal. The defendant frequently (used) go to the shop of aforesaid Sham Lal to sell the crops, as driver of the tractor and the above-stated Sham Lal usually got signature of the defendant in token of money advanced for diesel and other expenses on the blank papers. The aforesaid Sham has managed to get the signature of the defendant on the lower part of the receipt of the pronote by placing it between the blank papers, hence the defendant has not executed any pronote or receipt in token of the loan. However, the signature on the pronote are forged by the plaintiff or his brother by free and forgery." Similarly the proposed amendment in para 1 of reply on merit is as under :- "That the contents of this para are absolutely wrong and denied. However, the signature on the pronote are forged by the plaintiff or his brother by free and forgery." Similarly the proposed amendment in para 1 of reply on merit is as under :- "That the contents of this para are absolutely wrong and denied. It is correct that the plaintiff along with his brother was in good term with the defendant but the good terms came to an end but the plaintiff and his brother and the defendant and the brother of defendant who was Karta of the plaintiff in favour of Prithvi, brother of the defendant. The defendant was not having any relation good or bad with the plaintiff and never visited the shop of the plaintiff, as such the question of making any request for borrowing any alleged sum of Rs. 80,000/- does not arise at all." The learned trial Court after considering the arguments of the parties was pleased to reject the amendment application by passing the following order : "8. This application under Order 6 Rule 17 CPC has been filed by the defendant to amend written statement earlier filed by the defendant in the suit. This suit has been filed by the plaintiff for recovery of amount on the basis of pronote and receipt executed by the defendant in favour of the plaintiff. The defendant wants to amend para 4 of the written statement of preliminary objection in the earlier written statement filed by the defendant. The plaintiff has taken preliminary objection in para No. 4 that plaintiff has definitely prayed fraud with the defendant as the defendant has never borrowed any such amount nor executed any pronote and receipt. Now the defendant wants to add in para No. 4 that brother of plaintiff Sham Lal was doing business of commission agent (sic) customer of the abovesaid Sham Lal and defendant frequently go to the shop of above said Sham Lal to sell crop as a driver of the Tractor and the above said Sham Lal usually got signature of the defendant in token of money advanced for diesel and other expenses on blank papers. In this way the above said Sham Lal has managed to get the signature of defendant on the lower part of pronote and receipt by placing it between blank papers. Hence, the defendant has not executed any receipt or pronote in token of loan. In this way the above said Sham Lal has managed to get the signature of defendant on the lower part of pronote and receipt by placing it between blank papers. Hence, the defendant has not executed any receipt or pronote in token of loan. Signature on pronote are forged by the plaintiff by free-hand forgery. However, the defendant wants to set up a new case by amending para No. 4 of the written statement, as the defendant wants to add that brother of the plaintiff Sham Lal has taken signature of the defendant on some blank papers and used it by the plaintiff to file this suit against the defendant. Whereas, earlier the defendant has not taken any plea regarding forgery played by the brother of the plaintiff Sham Lal with the defendant. Moreover, the defendant wants to amend para No. 1 of the written statement on merits, whereas in earlier written statement, it is admitted by the plaintiff that plaintiff was in good terms with the defendant but now the defendant wants to substitute para No. 1 of the reply on merits that brother of the plaintiff Sham Lal was in good terms with the defendants as being his customer. However, the admission made by the party earlier cannot be withdrawn as admission in the earlier written statement filed by the defendant. It is admitted that defendant and brother of the plaintiff Sham Lal has good relationship. Counsel for the plaintiff relies upon 1998(1) Judicial Reports 350 in case Sant Parkash Singh v. Nirmal Singh wherein it was held :- "Civil Procedure Code 1908, Order 6 Rule 17 - Amendment - Seeking to withdraw admission - Admission made not shown to be wrong nor has it been explained away - Application rightly dismissed." As per this authority admission made by the party cannot be allowed to be withdrawn by amending the pleadings. Moreover in this case, defendant has filed this application under Order 6 Rule 17 CPC for amendment of the written statement on the day when case was fixed for pronouncement of the judgment and the arguments at length by both the parties were heard by my learned predecessor. Moreover in this case, defendant has filed this application under Order 6 Rule 17 CPC for amendment of the written statement on the day when case was fixed for pronouncement of the judgment and the arguments at length by both the parties were heard by my learned predecessor. In this case, the arguments on the main suit has been heard by my learned predecessor on 11.5.1999 and the case was fixed for pronouncement of judgment for 12.5.1999 and on the said date when case was fixed for pronouncement of the judgment, this application under Order 6 Rule 17 CPC for amendment of the written statement has been filed by the defendant. In my opinion, this application has not been filed bona fide as the defendant had earlier sufficient time and opportunity to file this application under Order 6 Rule 17 CPC for amending its written statement. It is a matter of surprise that defendant filed this application for amendment of the written statement on the date when case was fixed for the pronouncement of the judgment. Hence I come to the conclusion that this application is not filed with bona fide intention but the same has been filed by the defendant with mala fide intention just to linger on the proceedings of this case. Moreover, counsel for the plaintiff also relied upon 1988 CCC Page 493 in case Ishwar Singh and others v. Sher Singh and others wherein in the head note it was held :- "CPC 1908, Order 6 Rule - Amendment of written statement - Amendment sought not bona fide and to delay the proceedings - Amendment disallowed." In this amendment application, the defendant has also alleged that the above said facts regarding the amendment of the written statement were not mentioned in the written statement due to inability of counsel for the defendant who are engaged at that time. I have gone through the file and found the present counsel Sh. T.S. Udasi filed Power of Attorney in this case on dated 29.7.1997. It means that he has already engaged by the party in this case. Moreover, the present counsel also appeared on 11.5.1999 in the Court and argued the case before my learned predecessor as his presence has been marked in the case. T.S. Udasi filed Power of Attorney in this case on dated 29.7.1997. It means that he has already engaged by the party in this case. Moreover, the present counsel also appeared on 11.5.1999 in the Court and argued the case before my learned predecessor as his presence has been marked in the case. Hence, plea of the defendant that the above said facts were not mentioned in the written statement earlier due to inability of the previous counsel is without any base as the present counsel had already engaged by the defendant to appear in this case. Moreover, the previous written statement has been filed in this case on 17.1.1995. The present application has been filed after a lapse of about four years of delay. The counsel for the plaintiff also relies upon 1979(1) RLR 230 in case Dalip Kumar and another v. Maluk Raj Dhuwan wherein, in the head note it was held :- "Civil Procedure Code, 1908, Section 115 and Order 6 rule 17 - Amendment of written statement - Amendment sought after three years from the date of institution of suit not bona fide - Amendment refused." As per this authority, amendment after three years from the date of institution of the suit it was held that it is not bona fide and amendment refused. So, from my above discussion, I come to the conclusion that this amendment application is filed not bona fide but the same has been filed just to delay the proceedings of this Court. So, the application filed by the defendant under Order 6 Rule 17 CPC for amendment of the written statement is hereby dismissed." In this background learned counsel for the petitioner vehemently argued that the petitioner was not trying to introduce a new plea but was seeking amendment to elaborate the plea of fraud which has already been taken in the original written statement. It was also the case of the petitioner that he did not wish to withdraw any admission made, rather he wanted to elaborate the same. If the stand of the petitioner is correct that the plea has already been taken and the evidence led on that no further elaboration is required. It was also the case of the petitioner that he did not wish to withdraw any admission made, rather he wanted to elaborate the same. If the stand of the petitioner is correct that the plea has already been taken and the evidence led on that no further elaboration is required. Learned trial Court held that by introducing a new plea, the case has to be retried and petitioner would have to lead evidence on the plea now raised otherwise no purpose would be served for allowing the amendment as the same could not be looked into the absence of evidence especially when the allegations are of fraud which cannot be accepted on its face value. I find that the learned Court below has rightly dismissed the application having been filed at the belated stage. Learned trial Court has exercised the jurisdiction vested in it in accordance with law which does not call for interference by this Court in exercise of revisional jurisdiction. Dismissed. Petition dismissed.