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2007 DIGILAW 1518 (PNJ)

Shiv Dutt v. Dharambir

2007-08-21

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - The present revision petition has been filed against the order dated 29-9-2006 passed by the learned Additional District Judge, (Fast Track Court), Gurgaon, dismissing the application filed by the defendant- petitioners under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the written statement. 2. Khem Chand, now deceased, filed a suit for declaration and permanent injunction on the plea that the plaintiff and ancestors of the defendants were the joint owners in possession of a residential plot marked ABEF as shown in the map bearing Ghar No. 126 situated within the abadi of village Kankrola, Tehsil and District Gurgaon. It was claimed that the plaintiff was owner in possession of residential house marked as EFGHIJ in the plan bearing Ghar Nos. 112, 113, 114 and 115 within the abadi of village Kankrola. 3. The plaintiff also claimed that about 40 years back his ancestors and ancestors of the defendants namely Molar, Phusa and others had exchanged the above property and the share of the ancestors of the defendants in Ghar No. 126 was given to the plaintiff and he was made an absolute and exclusive owner of Ghar No. 126 and that the plaintiff gave his share in Ghar Nos. 112 to 115. 4. The suit was contested on the ground that the plaintiff was neither the owner nor in possession of the suit property. It was claimed that the plaintiff and his ancestors were never the owners of the suit property. It was said to be owned by the defendants and their ancestors. It was further claimed that Ghar Nos. 112 to 115 were partitioned by the ancestors of the defendants and their ancestors had constructed their houses several years back in their individual shares and the plaintiff had no right or interest therein. It was also claimed that Ghar No. 126 was never given to the plaintiff. 5. In the written statement it was also pleaded that a similar suit for permanent injunction i.e. civil suit No. 896 of 31-10-1986 filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 16-8-1999, as the plaintiff failed to produce the evidence in that regard. The trial Court decreed the present suit ignoring the fact that the earlier suit filed by the plaintiff claiming ownership was dismissed. 6. The trial Court decreed the present suit ignoring the fact that the earlier suit filed by the plaintiff claiming ownership was dismissed. 6. In the appeal, the petitioner made an application for amendment of the written statement on the ground that the defendants are illiterate persons and had in fact instructed their counsel about the factum of plot having been obtained by them in pre-emption suit against the sale deed dated 17-3-1975 which was made by Phusa and Shiv Dutt, their ancestors. It was also claimed that information regarding dismissal of earlier suit was also given to the counsel, but no such plea was taken in the written statement and, therefore, on these grounds the defendant-petitioners sought to amend the written statement as under : "That the plaintiffs have never been the owner in possession of the suit property. The property in question was previously owned by the ancestors of the appellants namely Phusa son of Bhura and Shiv Dutt son of Molhar who sold the plot in question bounded in East : Choipal and other property, West : Rasta, North : Rasta, and in the South : House of Khem Chand and others, vide registered sale deed dated 17-3-1975 to Maman son of Kallu and Jai Narain son of Surjan and the appellants being in the relation of the said vendors preferred a suit for possession by way of pre-emption against the said sale which was ultimately decreed in favour of Om Parkash and Leelu appellants and in this way the appellants have become owners in possession of the plot in question and all these facts are very much within the knowledge of the plaintiffs but he concealed the same. This fact, however, also could not be explained in the written statement filed by the appellants on account of their illiteracy resulting in miscarriage of justice. Khem Chand plaintiff previously also instituted a false suit in respect of the plot in question titled as Khem Chand v. Gopi etc. and the said suit was dismissed on 16-8- 1989, however the plaintiffs have concealed this fact and have succeeded in obtaining the decree in question by making false allegations and by concealment by playing fraud not only on the appellants but also on the Court." 7. and the said suit was dismissed on 16-8- 1989, however the plaintiffs have concealed this fact and have succeeded in obtaining the decree in question by making false allegations and by concealment by playing fraud not only on the appellants but also on the Court." 7. It is alleged that the amendment is essential for just adjudication of the matter in controversy and no prejudice is going to be caused to the other party and the applicants should not be penalised on account of their illiteracy and sheer negligence." 8. The application was contested and it was claimed that the amendment cannot be allowed after commencement of trial in view of amended provisions of Order 6 Rule 17 of the Code of Civil Procedure. The other allegations were denied. It was also asserted that in spite of number of opportunities having been given to the defendants, they failed to lead evidence. It was also denied that the amendment sought goes to the root of the case and on these pleas dismissal of the application was sought. 9. The learned Additional District Judge, Gurgaon, was pleased to dismiss the application by observing that the story put up by the petitioners that their Counsel has failed to take the plea regarding pre-emption cannot be believed. It was also held that illiteracy was no ground to allow the amendment and further the defendant-appellants could not be permitted to make out a new case and that they cannot be allowed to fill up the lacuna in their case as valuable right had accrued to the plaintiff and his legal representatives which cannot be taken away. 10. Mr. C.B. Goel, learned counsel appearing on behalf of the petitioners has challenged the order passed by the learned lower Appellate court on the ground that the same cannot be sustained as it is contrary to the settled law to the effect that the amendment of the written statement is to be granted more liberally than in the plaint. In support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors., 2007(2) RCR(Civil) 830 and on the judgment of this Court in the case of Pal Singh v. Ranjit Singh, (2006-2) PLR 68. 11. In support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors., 2007(2) RCR(Civil) 830 and on the judgment of this Court in the case of Pal Singh v. Ranjit Singh, (2006-2) PLR 68. 11. Learned counsel for the petitioners further contended that under Order 6 Rule 17 of the Code of Civil Procedure, the amendment can be allowed at any stage of the proceedings if the Court is of the view that such amendment is necessary for determining the real question of controversy between the parties. 12. Learned counsel for the petitioners thereafter placed reliance on the judgment of this Court in the case of Sant Ram Bhatia v. State Bank of Patiala and another, (2007-1) PLR 457 to contend that the amendment sought by the petitioners was based on the decree of the civil court which was concealed by the plaintiff-respondent in his plaint by malting a wrong assertion that the earlier suit was dismissed in default, whereas in fact the earlier suit was dismissed on merit as the plaintiff-respondent had failed to adduce any evidence. 13. Learned counsel for the petitioners further placed reliance on the judgment of this Court in the case of Lal Singh v. Gurdial Singh, (2000-3) PLR 266 to contend that even if a fact was known to the defendant and his Counsel and there is omission on their part to incorporate that fact in the written statement, the defendant could not be debarred from pleading this fact. 14. The contention of the learned counsel for the petitioners therefore, was that in view of the settled law, it was not open to the learned lower Appellate Court to have rejected the application for amendment of the written statement for the reasons given therein. 15. Mr. Lokesh Singhal, learned counsel appearing on behalf of the plaintiff- respondents contended that the order is in consonance with law as the petitioners want to set up a new case which was not pleaded in the written statement originally. He also contended that the amendment sought was within their knowledge from the very beginning and, therefore, application for amendment has been rightly dismissed. In support of his contention, he placed reliance on the judgment of the Court in the case of Ajit Singh v. Sulakhan Singh, (2004-1) PLR 654. He also contended that the amendment sought was within their knowledge from the very beginning and, therefore, application for amendment has been rightly dismissed. In support of his contention, he placed reliance on the judgment of the Court in the case of Ajit Singh v. Sulakhan Singh, (2004-1) PLR 654. 16. Learned counsel for the plaintiff-respondents also placed reliance on the judgment of this Court in the case of Rajinder Kishore & others v. Kesar Dass & others, AIR 1986 P&H 81 to contend that in order to seek amendment at the appellate stage a very strong case is to be made out as to why it was not sought in the trial Court. Learned counsel for the respondent also contended that a valuable right has accrued to the plaintiff- respondents and the same cannot be taken away by way of amendment. The contention of the learned counsel for the respondent was that by way of amendment, the petitioners are seeking to fill up the lacuna in their case. 17. I have considered the arguments raised by the learned Counsel for the parties and find that the learned lower Appellate Court was not justified in rejecting the application for amendment. The amendment sought was based on the facts which were very necessary for the just and proper adjudication of the matter. The plaintiff-respondents have intentionally concealed the factum of dismissal of earlier suit by making a wrong assertion in the plaint to the effect that earlier suit was dismissed for non-prosecution, whereas the same was dismissed on merit. It is settled law that a party not coming to the Court with clean hands is not entitled to any discretionary relief. 18. The other ground for seeking amendment was based on the decree of the civil court which was very material for the just and proper adjudication of the case. It is settled law that the procedural law is meant for advancement of justice and not to thwart the same. Once the important aspects of the case come to the notice of the Court which are necessary for just and proper adjudication of the case, the plea of amendment could not be rejected on the ground of negligence or lapse on the part of the party to plead the same at appropriate time. 19. Once the important aspects of the case come to the notice of the Court which are necessary for just and proper adjudication of the case, the plea of amendment could not be rejected on the ground of negligence or lapse on the part of the party to plead the same at appropriate time. 19. Consequently, this revision petition is allowed and the impugned order is set aside and the application for amendment of the written statement filed by the defendant-petitioners is allowed. The Lower Appellate Court may proceed with the matter in accordance with law. Petition allowed.