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2013 DIGILAW 1073 (RAJ)

Atma Ram v. Banwari Lal

2013-05-24

VIJAY BISHNOI

body2013
JUDGMENT 1. - This writ petition has been preferred by the petitioner against the order dated 6.4.2013 whereby the application preferred by the petitioner under Order 6, Rule 17 C.P.C. for amending the written statement has been rejected by the learned Additional District Judge, Anoopgarh (hereinafter referred to as the trial Court'). 2. Brief facts of the case are that the respondent-plaintiffs No. 1 and 2 preferred a suit for specific performance of contract dated 9.2.2011 against the petitioner-defendant while claiming that the petitioner executed an agreement to sale of a plot in question situated in Ward No. 11 Anoopgarh measuring 500 square yard on 9.2.2011 for an amount of Rs. 20 and lakhs out of which the petitioner has received Rs. 5 lakhs as advance and has agreed that the registry of the said plot will be executed on 10.3.2011 and the possession of the plot would be handed over at that time after receiving the remaining amount of Rs. 15 lakhs. It is claimed by the respondents that though they were ready and willing to perform their part of action on 10.3.2011 but the petitioner did not perform his part of action and refused to get the registry of the plot in question on 22.7.2012 and, therefore, a decree for specific performance of contract be issued in favour of the respondents and against the petitioner. A written statement was filed on behalf of the petitioner wherein the petitioner admitted the execution of agreement to sale dated 9.2.2011. 3. The petitioner thereafter preferred an application under Order 6, Rule 17 C.P.C. and has claimed that in the written statement, the applicant has wrongly admitted the execution of the agreement to sale with one of the plaintiff Jugal Kishore and the same has been done on account of mistake, therefore, he will be allowed to amend his written statement to this effect. The respondents have contested the application preferred by the petitioner for amending written statement while claiming that in the written statement, the petitioner has specifically admitted execution of the agreement to sale by him in favour of the respondent-plaintiffs and now he wants to resile from the said statement which cannot be permitted at this stage when the trial had already been commenced. 4. 4. The learned trial Court after taking into consideration the application for amending the written statement, the reply of the respondents and after hearing the parties concerned rejected the application preferred by the petitioner while observing that the statement of the petitioner that he has not entered into any agreement with the plaintiff jugal Kishore for the sale of the plot in question vide agreement to sale dated 9.2.2011 is not believable as the petitioner has filed the written statement after availing more than one opportunity and the said written statement has also been verified by the petitioner. It is also observed by the learned trial Court that it is not believable that the petitioner has executed the agreement to sale in favour of an un-known person and has also received an amount on behalf of the said unknown person. The trial Court has observed that in the suit the issues have been framed on 2.4.2012 and the evidence of the plaintiff has also been produced and the trial of the case has already been commenced and the petitioner has filed this application with a great delay and the application is also not supported by any affidavit and, therefore, in such circumstances, the petitioner cannot be allowed to amend his written statement. 5. The learned trial Court, therefore, rejected the application preferred by the petitioner for amending the written statement vide order dated 6.4.2013 against which the petitioner has preferred this wit petition. 6. The learned counsel for the petitioner has argued that the learned trial Court has illegally rejected his application for amending the written statement while observing that there is a delay in filing the application for amending the written statement. it is contended by learned counsel for the petitioner that the written statement can be amended at any time and the action of the learned trial Court of rejecting the application of the petitioner is absolutely illegal. Learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Apex Court rendered in Baldev Singh & Ors. v. Manohar Singh & Anr., reported in 2006(2) WLC 533 . 7. This Court has taken into consideration the arguments of learned counsel for the petitioner and also perused impugned order and the material placed by learned counsel for the petitioner with the writ petition. 8. v. Manohar Singh & Anr., reported in 2006(2) WLC 533 . 7. This Court has taken into consideration the arguments of learned counsel for the petitioner and also perused impugned order and the material placed by learned counsel for the petitioner with the writ petition. 8. The petitioner in his written statement has specifically admitted the execution of the agreement to sale dated 9.2.2011 executed by him in favour of plaintiffs Banwari Lal and Jugal Kishore and has also specifically admitted receipt of Rs. 5 lakhs at the time of execution of the agreement. The petitioner by way of filing application under Order 6, Rule 17 C.P.C. now wants to resile from his admission made in the written statement while claiming that he did not know the plaintiff jugal Kishore and he had not entered into any agreement with the defendant Jugal Kishore on 9.2.2011. The learned trial Court has disbelieved the said version of the petitioner while observing that at the time of filing of the written statement, no such plea was taken by the petitioner and the written statement has been verified by him. It is also observed by the trial Court that along with the application for amending the written statement, no affidavit in support of the application had been submitted by the petitioner. The Court below has also observed that the application for amending the written statement preferred by the petitioner after delay and at the stage when the affidavits of the plaintiffs have already been filed in evidence. The learned trial Court has also observed that it cannot be believed that ,at the time of filing of the written statement, the petitioner has failed to mention the fact about the unawareness in respect of the plaintiff Jugal Kishore. 9. This Court is of the opinion that when the petitioner had admitted about the execution of agreement to sale dated 9.2.2011 in his written statement without even referring about the unawareness in respect of the defendant No. 2, fugal Kishore now the petitioner cannot say that he has not entered into an agreement with one of the plaintiffs on 4.2.2011. This action of the respondents clearly amounts to non-admission of execution of agreement of sale dated 9.2.2011 which he had clearly admitted while filing the written statement. Such an amendment in the written statement cannot be allowed. This action of the respondents clearly amounts to non-admission of execution of agreement of sale dated 9.2.2011 which he had clearly admitted while filing the written statement. Such an amendment in the written statement cannot be allowed. In fact, it is not amendment in the written statement but an attempt on the part of the petitioner to resile from the earlier admission. The learned trial Court has rejected the application of the petitioner on different grounds such as delay etc. but in the facts and circumstances of the case such amendment in the written statement cannot be allowed. The judgment referred by the learned counsel for the petitioner has no application on the facts of the present case as in that case the Hon'ble Apex Court has allowed the defendant to raise additional defence by, way of amendment in the written statement, however, in the present case, the petitioner wants to resile back from his admission made in the written statement by way of filing application for amending the written statement. In view of a above discussions, there is no force in this writ petition. The same is here dismissed. Petition Dismissed. *******