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2007 DIGILAW 949 (PNJ)

Jaswinder Kumar v. Simla Bai

2007-04-23

VINOD K.SHARMA

body2007
JUDGMENT Vinod K.Sharma, J 1. Present revision petition has been filed against an order passed by the learned Additional District Judge, Sirsa vide which application moved by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) seeking amendment of the written statement has been declined. 2. The plaintiff-respondents had filed a suit for declaration and setting aside of judgment and decree dated 30.4.1993 passed in Civil Suit No.1007 of 1993 titled Surinder Rani etc. Vs. Jaswinder Kumar. That suit was decreed on 29.4.2002. The petitioner filed appeal against the said judgment and decree. 3. During the pendency of the appeal an application was moved to amend the written statement to plead therein that he was entitled to inheritance on the basis of Will dated 20.11.1978. The said application was contested, firstly on the plea that the Will was forged and fabricated document and further that there was nothing on record to show that how the Will has been traced by the applicant just after the dismissal of the suit and before the filing of the appeal. Learned lower appellate court was pleased to dismiss the application moved by the petitioner by observing as under :- “9. After hearing both the sides at length, going through the case file very carefully and thoroughly, giving thoughtful consideration to the provisions of Order 6 Rule 17 C.P.C. and case laws relied upon by both sides, I am of the considered opinion that arguments advanced by learned counsel for appellant-applicant are devoid of any merit and the case laws relied upon by him are distinguishable on the facts and circumstances of the present case, whereas, the argument advanced by learned counsel for respondents-plaintiffs are forceful and the case laws relied upon by him have full force on the facts and circumstances of the present case. The Civil Suit was filed by the plaintiffs on 24.9.1993. The written statement was filed by the defendant-applicant on 14.9.1994. The suit was decreed on 29.4.2002. The appeal was filed by the defendant-applicant on 10.5.2002 with the present application under Order 6 Rule 17 C.P.C. The application was not supported with any affidavit. The applicant filed the affidavit only on 1.3.2006. The written statement was filed by the defendant-applicant on 14.9.1994. The suit was decreed on 29.4.2002. The appeal was filed by the defendant-applicant on 10.5.2002 with the present application under Order 6 Rule 17 C.P.C. The application was not supported with any affidavit. The applicant filed the affidavit only on 1.3.2006. A perusal of copy of the Will shows that the Stamp Paper on which the Will has been written was purchased for execution of an agreement and there are many attesting witnesses of the Will which prima facie shows that the Will is fabricated and even otherwise, the same is not essential for the just decision of the case as in the case in hand judgment and decree dated 30.4.1993 has been challenged. It seems that the application has been filed by the applicant just to prolong the case and deprive the respondents to enjoy the fruits of the decree passed in their favour.” 4. Mr.R.S.Mittal, learned senior counsel appearing on behalf of the petitioner has contended that the reasons given by the learned lower appellate court for rejection of the application under Order 6 Rule 17 of the Code cannot be sustained as in the application moved by the petitioner for the amendment of the written statement he has categorically mentioned that the Will executed by Karam Chand son of Buta Ram dated 20.11.1978 in favour of the defendant regarding the suit land and also the Will of Lal Chand in favour of the defendant and his mother dated 5.11.1991, photo copies of which were attached were not earlier in the knowledge of the defendant and therefore, he could not take that plea in the suit of 1993 as also in the present suit which goes to the root of the case. It was further pleaded that the Will came to knowledge of the defendant just on 6.5.2002 on the reference of Shri Kashmiri Lal, Ex-Sarpanch of Baruwali-Aval and on search of old papers in the house. Then the description of the Will was also given. 5. Learned senior counsel thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Salem Advocate Bar Association Tamil Nadu Vs. Then the description of the Will was also given. 5. Learned senior counsel thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Salem Advocate Bar Association Tamil Nadu Vs. Union of India 2005 AIR SCW 3353 to contend that the Hon'ble Supreme Court has been pleased to lay down the law regarding the amendment and it has also discussed the amendment made in the Code of Civil Procedure. The contention of the learned counsel for the petitioner is that in view of the law laid down by the Hon'ble Supreme Court the application ought to have been allowed. 6. Thereafter, reliance was placed on the judgment of this court in Tej Paul Oswal Vs. The Land Acquisition Collector, (Sub Divisional Officer, (Civil,) Ludhiana and others (1989-2) P.L.R.680 and judgment of Hon'ble Delhi High Court Mangal Dass Sant Ram Gauba Vs. Union of India and others AIR 1973 Delhi 96 to contend that for the purpose of deciding the application under Order 6 Rule 17 of the Code the court is not to go into the merit of the case and see whether the plea raised would be sustainable or not and the merit of the amendment can only be seen after the parties have been allowed to lead evidence. 7. Learned counsel, thereafter, placed reliance on the judgment of Hon'ble Supreme Court in Basavan Jaggu Dharbi Vs. Sukhnandan Ramdass Chaudhry (dead) through L.Rs. And others 1995 Supp. (3) SCC 179 to contend that merely by allowing the amendment no prejudice could be caused to the other party as the opposite party can contest the same even by raising additional pleas. 8. The proposition of law cannot be disputed but the court has to see whether the amendment sought is bona fide and is necessary for just and proper adjudication of the case. As a matter of fact, the learned lower appellate court has already taken note of the judgment cited by the learned counsel for the petitioner and recorded a finding that the law laid down therein does not apply to the facts of the present case. A finding has rightly been recorded that the present application was moved after the suit was decreed. Rather in earlier suit also no such plea was taken. A finding has rightly been recorded that the present application was moved after the suit was decreed. Rather in earlier suit also no such plea was taken. The court also noticed that prima facie the Will did not seem to be genuine as the same was written on a paper alleged to have been bought for the execution of an agreement and accordingly came to the conclusion that the application was not bona fide but was filed merely to delay the proceedings. There is no error in exercise of jurisdiction by the learned lower appellate court which may all for any interference by this court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Revision Dismissed.