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2010 DIGILAW 1320 (PNJ)

Anita Dahiya (wrongly mentioned) @ Anita Rani @ Anita Garg v. Sohan Singh

2010-03-29

RAJESH BINDAL

body2010
JUDGMENT Rajesh Bindal, J.:- This order shall dispose of the above mentioned two petitions, as the same arise out of a common order dated 4.1.2010, passed by the learned court below, whereby the applications filed by the petitioner-defendant under Order 6 Rule 17 CPC seeking amendment of the written statement and under Section 65(f) of the Indian Evidence Act permitting her to prove certified copies of lease deed and sale deed, were dismissed. 2. Briefly, the facts of the case are that respondent No. 1- Sohan Singh initially filed a suit against respondents No. 2 to 4 and Smt. Khushbu wife of Raj Kumar seeking possession of 17.88 marlas, i.e., 4597 square feet of land, on which the aforesaid defendants had installed a petrol pump and another 272 square feet of land, which was claimed to be under their cultivation. It was claimed in the suit that respondent No. 1-plaintiff had been forcibly ejected from the land, on which he was tenant at will on 1/3rd batai. It was pleaded in the suit that respondent No. 1-plaintiff was ejected from the land six months prior to the date of filing of the suit. Initially, the petitioner was not impleaded as defendant in the suit, which was filed on 4.8.2005. Subsequently, application under Order 1 Rule 10 CPC was filed seeking impleadment of the petitioner and respondent No. 6 as defendants No. 3(b) and 3(c) in the suit on the ground that they were necessary parties being partners of the firm M/s Paras Ram Shubh Karan. Prayer was also made for deletion of the name of Smt. Khushbu on the ground that she had already expired when the suit was filed but was impleaded inadvertently, as this fact was not in the knowledge of respondent No. 1- plaintiff. The application was allowed on 10.12.2007. The newly added respondents were served for 11.8.2008. The evidence of the plaintiff was closed on 10.9.2009 and thereafter, the case was put up for evidence of the defendants. However, in the process of recording of evidence of the defendants, Smt. Shanti Devi, one of the defendants, expired and application was filed for impleading her legal representatives. When the case was fixed for evidence of the defendants on 19.11.2009, the petitioner filed application under Order 6 Rule 17 CPC seeking amendment of the written statement filed by her. However, in the process of recording of evidence of the defendants, Smt. Shanti Devi, one of the defendants, expired and application was filed for impleading her legal representatives. When the case was fixed for evidence of the defendants on 19.11.2009, the petitioner filed application under Order 6 Rule 17 CPC seeking amendment of the written statement filed by her. Another application under Section 65(f) of the Indian Evidence Act was filed seeking to prove certified copy of the lease deed dated 27.7.2005 registered at Sr. No. 2725 and certified copy of the sale deed dated 10.7.2003 registered at Sr. No. 1677 by way of secondary evidence. The learned court below, on the one hand, issued notice in the applications to respondent No. 1-plaintiff, but on the other side closed the evidence of the defendants by order of the court. Subsequent thereto, both the applications were rejected by the learned court below vide common order dated 4.1.2010. It is against this order that the petitioner has approached this Court. 3. Learned counsel for the petitioner submitted that inadvertently in the written statement filed originally on behalf of defendants No. 3(b) and 3(c), it was stated that they had constructed the petrol pump. However, at the time of leading evidence, the error was noticed as the petrol pump was in fact constructed by Hindustan Petroleum Corporation Ltd. (for short, ‘the Corporation’) on the land owned by the petitioner, which was given by her on lease vide registered lease deed dated 27.7.2005 to the Corporation. It was further sought to be mentioned in the written statement that the leased out land was measuring 2 kanals 15 marlas, which is 55/1805 share of total land measuring 90 kanals 5 marlas bearing khasra No. 215/26/2/5/3/5/3/3 (90-5). He further submitted that even if there is some delay in filing the application for amendment of the written statement, still the fact remains that law with regard to amendment in the written statement is liberal as compared to the amendment of the plaint. The plea, which is sought to be raised, is supported by the evidence, which cannot possibly be created as it is the registered lease deed executed by the petitioner in favour of the Corporation. The plea, which is sought to be raised, is supported by the evidence, which cannot possibly be created as it is the registered lease deed executed by the petitioner in favour of the Corporation. The fact that the petrol pump is existing on the land, the possession of which is sought by respondent No. 1- plaintiff in the suit filed, is even admitted by him in the plaint. It is not the case that the petitioner is unnecessarily delaying the process as the evidence of the defendants started merely on 5.10.2009 and the same was closed by the court on 19.11.2009, within 1-1/2 months, whereas the plaintiff took about one year in concluding his evidence. He further submitted that even if there is some delay, which can be attributed to the petitioner, respondent No. 1- plaintiff can very well be compensated with costs. As in the absence of the amended written statement being on record and the requisite evidence, the lis between the parties cannot be decided properly, as even if the decree is passed in favour of respondent No. 1- plaintiff, still the property in dispute being in possession of the Corporation, it will be difficult to execute the same without considering the objections, which may be raised by the Corporation. 4. Learned counsel for the petitioner with regard to rejection of prayer for permitting her to lead secondary evidence to prove the sale-deed and the leasedeed, submitted that originals thereof were not available and as the same are duly registered with Sub Registrar at Fatehabad, the documents being crucial for decision of the case, she be permitted to prove the same by way of secondary evidence. 5. In response to the contentions raised by learned counsel for the petitioner, learned counsel for respondent No. 1- plaintiff submitted that no application seeking amendment in the pleadings can be entertained after the trial commences. In the present case, the trial had in fact concluded. The application was filed at the fag end. The stand, which is sought to be taken in the written statement is totally contrary to the stand earlier taken by the petitioner in the written statement already filed. The petitioner was granted as many as six opportunities for concluding her evidence. In the present case, the trial had in fact concluded. The application was filed at the fag end. The stand, which is sought to be taken in the written statement is totally contrary to the stand earlier taken by the petitioner in the written statement already filed. The petitioner was granted as many as six opportunities for concluding her evidence. On account of the fact that evidence could not be concluded, the application in question was filed so that what could not be achieved directly could be achieved indirectly. If at this stage, the amendment is allowed, that will lead to de novo trial as the Corporation may have to be impleaded as one of the defendants in the suit, considering the plea sought to be raised by the petitioner in the amended written statement. In fact, even the land, which was leased out by the petitioner to the Corporation, is different than the land of which the possession is sought by respondent No. 1- plaintiff in the suit filed and the amendment, in fact, is not at all relevant for the purpose of decision of the lis between the parties. 6. With regard to application filed under Section 65(f) of the Indian Evidence Act, learned counsel for respondent No. 1- plaintiff submitted that once there is no pleading about the documents in the written statement already filed by the petitioner, there is no question of permitting the petitioner to produce the same in secondary evidence. He further submitted that the ingredients required for permitting a party to prove a document by way of secondary evidence are not available in the present case, as admittedly both the documents are registered, meaning thereby the same are available in the Registrar’s office. 7. Heard learned counsel for the parties and perused the paper book. 8. A perusal of the impugned order shows that prayer for amendment of the written statement was rejected primarily on the ground that earlier the petitioner had taken the stand in her written statement that the petrol pump had been constructed by her, which is now sought to be changed to that the petrol pump had been constructed by the Corporation. Secondly, the amendment sought is not relevant for the reason that the khasra numbers, of which possession has been claimed in the suit and the khasra numbers, which were leased out to the Corporation, are different. Secondly, the amendment sought is not relevant for the reason that the khasra numbers, of which possession has been claimed in the suit and the khasra numbers, which were leased out to the Corporation, are different. Further, it was quite late when the application was filed, as the trial was about to conclude and the facts were within the knowledge of the petitioner. 9. In my opinion, considering the totality of the circumstances of the case, the application filed by the petitioner seeking to amend the written statement deserves to be allowed. No doubt, initially the stand taken by the petitioner in the written statement was that the petrol pump had been constructed by her, however, it is now sought to be changed to plead that the petrol pump was constructed by the Corporation on the land leased out to it by the petitioner. The lease deed sought to be relied upon is stated to be a registered document, meaning thereby there is no chance of its fabrication. 10. In Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, 2007(2) RCR (Civil) 830, Hon’ble the Supreme Court opined that by way of amendment, admission made in the plaint cannot be sought to be omitted. It was further observed that prayer for amendment of the plaint stands on a different footing as compared to amendment of the written statement. 11. In the facts of the present case, it is the admitted case of even respondent No. 1- plaintiff that the petrol pump had been constructed on the land, the possession of which has been sought by him. The only dispute in the pleadings is as to who constructed the petrol pump. Initially, the stand of the petitioner was that it was constructed by her, which is now sought to be changed to that it was constructed by the Corporation and the land was leased out to it. Once the factum of existence of petrol pump on the land in dispute is admitted, even if a decree is passed in favour of respondent No. 1- plaintiff, the same will be required to be executed in terms of the provisions of the Code of Civil Procedure. Once the factum of existence of petrol pump on the land in dispute is admitted, even if a decree is passed in favour of respondent No. 1- plaintiff, the same will be required to be executed in terms of the provisions of the Code of Civil Procedure. The claim of the petitioner being that the property is in possession of the Corporation, the issue may have to be gone into in execution proceedings, in the circumstances, it would be appropriate to avoid delay and multiplicity of proceedings to permit amendment of pleadings at the time of trial of the suit, so that real controversy and the complete facts come before the court to enable it to adjudicate the rights of the parties effectively. 12. The observation of the learned court below in the impugned order that the land, possession of which has been sought in the suit and the portion of the land leased out by the petitioner to the Corporation are different, is not borne out from the record. Respondent No. 1- plaintiff is seeking possession of khasra No. 215/5, whereas the petitioner in the amendment application mentioned the khasra numbers of entire khewat of 90 kanals and 5 marlas, in which number of persons are co-sharers. Khasra No. 215/5 is one of the number mentioned therein. 13. In Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, 2010(1) RCR (Civil) 27, Hon’ble the Supreme Court dealt with the issue regarding amendment of pleadings by tracing out the history of the provisions. It has enumerated some of the factors which are required to be considered while dealing with the application for amendment. The same are dealt with in paragraphs 67 to 70, which are extracted below: “67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case ? (2) Whether the application for amendment is bona fide or mala fide ? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 70. We can conclude our discussion by observing that while deciding applications for amendments, the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” 14. Another issue, which was considered by Hon’ble the Supreme Court in the aforesaid judgment was regarding imposition of costs. It was opined that imposition of costs is an important judicial exercise, particularly when the courts deal with cases of amendment. Certain para-meters were laid down for determination of quantum of costs and also the purpose therefor. Paragraphs 65 and 66 of the aforesaid judgment dealing with the issue are extracted hereunder: “65. The courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought ? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (i) At what stage the amendment was sought ? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into consideration while awarding the costs. 66. The purpose of imposing costs is to : a) Discourage mala fide amendments designed to delay the legal proceedings; b) Compensate the other party for the delay and the inconvenience caused; c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and d) To send a clear message that the parties have to be careful while drafting the original pleadings.” 15. If the important factors, which are required to be taken into consideration while allowing or rejecting the application of amendment are applied in the facts and circumstances of the present case, it cannot be opined that the amendment sought to be made in the written statement is not bona fide, rather, it would lead the proper and effective adjudication of the lis between the parties. The delay in filing the application and consequently disposal of the suit can very well be compensated in terms of money. Refusal of amendment will lead to multiplicity of litigation. The same is not going to change the nature of the case. As it is the amendment sought in the written statement as a defence, the cause of action cannot be said to be barred by limitation. 16. Coming to the issue of imposition of costs in case the amendment is allowed, in my opinion, considering the fact that the application having been filed quite late during trial, there would certainly be delay in disposal of the suit finally. 16. Coming to the issue of imposition of costs in case the amendment is allowed, in my opinion, considering the fact that the application having been filed quite late during trial, there would certainly be delay in disposal of the suit finally. The land involved in the present case, the possession of which has been sought by respondent No. 1- plaintiff in the present case being 17.88 marlas which, according to respondent No. 1-plaintiff was being used by him for agricultural purposes, in my opinion, respondent No. 1-plaintiff can very well be compensated with imposition of appropriate costs on that account. 17. In view of my aforesaid discussion, the impugned order passed by the learned court below rejecting the prayer for amendment of the written statement is set aside. The application for amendment of written statement is allowed. However, the same shall be subject to payment of Rs. 25,000/- as costs to respondent No. 1-plaintiff. 18. As far as prayer for permitting the petitioner to prove the lease deed and the sale deed by way of secondary evidence is concerned, suffice to add that once the amendment in the written statement is being allowed, the court will consider the matter afresh from the stage of framing of issues and the parties may have to lead some evidence in support or defence in terms of new pleadings, the prayer for permitting the petitioner to prove the sale deed as well as lease deed shall be considered by the learned court below at that time without being prejudice by the order passed earlier. The revision petitions are disposed of accordingly. ------------