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2010 DIGILAW 3253 (PNJ)

Parkash Chand v. Krishan Lal

2010-12-06

HEMANT GUPTA

body2010
JUDGMENT Mr. Hemant Gupta, J. (Oral): - The present revision petition is directed against an order passed by the learned trial Court on 23.08.2010, whereby defendant No.1 has been permitted to amend the written statement dated 10.02.2005. 2. The plaintiff-petitioner have filed a suit for permanent injunction restraining the defendant, who is none else but his own son, from storing paddy, wheat or any other material in the land measuring 31 Kanals situated in the revenue limits of Village Khaspur, Tehsil Samana, District Patiala. It is asserted by the petitioner that the defendant owned 3/20 share out of suit property, which he has sold to Madan Lal son of Pawan Kumar and that defendant is neither the owner and co-owner and has no concern with the property. In the said suit, the defendant filed his written statement asserting the following facts: “4. In reply to para No.4, it is submitted that it is correct that the land measuring 4 Kanal 13 Marlas was sold by the replying defendant to Sh. Madan Lal, but it is denied that the replying defendant is not owner of the land. It is also denied that the plaintiffs are in physical possession of the entire suit property.” 3. In the subsequent paragraphs, the defendant has asserted that in the year 1980, Rice Sheller was constructed by the said defendant known as M/s Mahavir Rice Mill, Narwana Road, Patran and that he is the exclusive owner of the aforesaid Rice Sheller. Earlier, the defendant has filed an application for amendment of the written statement, to raise a plea that the aforesaid Rice Sheller was not purchased by an individual person, but by the partnership firm. The said amendment was declined by the learned trial Court on 10.09.2008. The revision against the said order was also dismissed by this Court on 03.12.2008. Thereafter, the defendant filed another application for amendment of the written statement to amend the word “correct” appearing in para No.4 of the written statement, as mentioned above, to read as “incorrect”. It is the said amendment, which has been allowed by the learned trial Court vide the order impugned in the present revision petition. 4. Thereafter, the defendant filed another application for amendment of the written statement to amend the word “correct” appearing in para No.4 of the written statement, as mentioned above, to read as “incorrect”. It is the said amendment, which has been allowed by the learned trial Court vide the order impugned in the present revision petition. 4. Learned counsel for the petitioners has referred to another suit inter parties, pleadings of which have been produced as Annexures P-1 to P- 3, wherein the defendant has admitted the sale of his share of land in favour of Madan Lal. The defendant has filed a counter-claim claiming decree for permanent injunction restraining the present petitioner from interfering in the peaceful possession of the suit property. In the said suit, the defendant has arrayed Madan Lal i.e. the vendee from him, as the co-defendant, to claim a decree for permanent injunction. 5. Learned counsel for the petitioners has vehemently argued that the learned trial Court has allowed such amendment though such amendment was sought after 5 years of filing of written statement. The defendant wishes to withdraw the admission of the sale, therefore, the defendant cannot be permitted to amend the written statement. It is also argued that the application has been filed after the parties have concluded their entire evidence and, therefore, the amendment sought is not permissible. 6. The learned counsel for the respondents has argued that the defendant is asserting title over the suit property and, therefore, the entire written statement has to be read to find out the stand of the defendants. It is argued that the defendant has not accepted the sale in favour of Madan Lal, therefore, the amendment has been rightly allowed by the learned trial Court. 7. After hearing learned counsel for the parties, I am of the opinion that the order passed by the learned trial Court suffers from patent illegality and irregularity causing substantial injustice to the petitioners. In the written statement, the averments of the defendant are in two parts i.e. firstly, in respect of ownership of the land and; secondly, ownership of the super-structure. In respect of land, the defendant’s plea is that the land was sold to Madan Lal. In the written statement, the averments of the defendant are in two parts i.e. firstly, in respect of ownership of the land and; secondly, ownership of the super-structure. In respect of land, the defendant’s plea is that the land was sold to Madan Lal. It is pertinent to mention here that though the plaintiff has asserted sale of 3/20 share, but the defendant has come out with a plea that the land measuring 4 Kanals 13 Marlas was sold to Madan Lal. The subsequent paragraphs in the written statement lead to ownership over the super-structure. Since the land and super-structure can be owned by two different entities, therefore, the argument that it was inadvertent mistake in Para No.4 of the written statement in respect of sale to Madan Lal, is not tenable. 8. Even otherwise, the defendant has sought amendment in the written statement after the parties have concluded their entire evidence. The application for amendment at this stage is not maintainable in terms of the amended provisions of Order 6 Rule 17 of the CPC. 9. In view of the above, the order passed by the learned trial Court, allowing the amendment in the written statement, is set aside. The learned trial Court directed to decide the suit on merits expeditiously. ---------------0.K.B.0--------------