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2006 DIGILAW 3224 (PNJ)

Balbir Singh v. Kewal Krishan

2006-08-08

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - Present revision petition has been filed against an order passed by the learned Civil Judge (Senior Division), Ropar vide which application filed by the respondent under Order 6 Rule 17 of the Code of Civil Procedure was allowed. 2. Brief facts of the case are that Gurdev Singh along with his brothers Balbir Singh and Gurshran Singh had executed an agreement to sell dated 23.10.1996 and the said agreement was extended on 17.4.1997. Gurdev Singh who was unmarried died. The case set up by the plaintiff-respondent was that as Gurdev Singh was unmarried the property of Gurdev Singh was inherited by Balbir Singh and Gursharan Singh and therefore, they were the legal representatives of late Gursharan Singh. 3. In the written statement an objection was taken that the suit was bad for non-joinder and misjoinder of necessary parties. However, no mention was made that the property of Gurdev Singh was inherited by Gurdayal Kaur mother of Gurdev Singh. However, by leading evidence the factum of property having been inherited by Smt. Gurdayal Kaur came to the knowledge of the plaintiff- respondent and accordingly application for amendment was made. 4. The said application was contested by the present petitioner on the ground that an objection was taken regarding the non-joinder of necessary parties in the written-statement and therefore, the amendment at this belated stage could not be allowed. 5. In support of the application for amendment reliance was placed by the respondent-plaintiff on the judgment of Honble Supreme Court in Pankaja and another v. Yellappa (D) by L.Rs. and others, 2004(3) Civil Court Cases 401 wherein it is held as under :- "Civil Procedure Code 1908, Order 6 Rule 17 - Plaint amendment - Delay - Inspite of delay and laches an amendment can be allowed if facts of the case so permit, as dominant purpose of allowing amendment is to minimize the litigation. Plaint amendment Delay Relief barred by Limitation - Amendment can be allowed depending upon the facts of the case - If grant of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same can be allowed - There is no straightjacket formula for allowing or disallowing an amendment of pleadings - Each case depends upon the factual background of that case." 6. As against this the petitioner had relied upon the judgment of this Court in Sukhdev Singh v. Balkrishan, 2005(1) Recent Civil Reports 459 wherein it was observed as under :- "Civil Procedure Code, Order 6 Rule 17 - Amendment - Delay - The stage for amendment is only before commencement of trial - No application for amendment is to be entertained after commencement of trial unless the Court comes to a conclusion that by due diligence the party seeking amendment could not have raised the matter before the commencement of the trial - If the fact was in the knowledge of the party at the time of trial, that cannot be incorporated by amendment at the final stage of the suit." Learned Court below on the basis of material and averments made by the parties came to the conclusion that the factum of inheritance by Smt. Gurdayal Kaur came to the knowledge of the plaintiff-respondent during the course of evidence of the defendant and therefore amendment was necessitated. The Court also held that the amendment was necessary for just and appropriate decision of the case. 7. Learned counsel for the petitioner challenged the order passed by the Court below primarily on the plea that once an objection was taken in the written-statement with regard to the non-joinder and misjoinder of parties and the respondent-plaintiff had taken no steps to implead Smt. Gurdayal Kaur the amendment at this belated stage could not be allowed. It was also contended by learned counsel for the petitioner that now a valuable right of limitation has accrued to Smt. Gurdayal Kaur and therefore, the amendment could not be allowed at this stage. I do not find any merit in this contention of the learned counsel in view of the judgment of Honble Supreme Court in Pankaja and another v. Yellappa (D) L.Rs. and others (supra), wherein it has been held that amendment sought after the relief is barred by limitation can be allowed in appropriate cases if that subserves cause of justice and avoids further litigation. 8. The Honble Supreme Court in Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006(2) RCR(Civil) 577 has been pleased to lay down that it is mandatory on the Courts to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 9. 8. The Honble Supreme Court in Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006(2) RCR(Civil) 577 has been pleased to lay down that it is mandatory on the Courts to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 9. In the present case it may be noticed that a deliberate attempt was made by the petitioner in not disclosing in the written-statement that the share of Gurdev Singh deceased was inherited by his mother Smt. Gurdayal Kaur under a Will though a specific averment was made in the plaint that the property of Gurdev Singh was inherited by the petitioner. The petitioner, therefore, cannot be allowed to take benefit of their own wrong of concealing the material facts from the Court and plaintiff-respondent. In these circumstances, I do not find any illegality or irregularity in allowing the application for amendment by the Courts below and, therefore, finding no merit in the present revision petition dismiss the same. Petition dismissed.