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2014 DIGILAW 1228 (PNJ)

DHARAM SINGH v. RATTAN SINGH

2014-08-26

RAJIV NARAIN RAINA

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JUDGMENT : RAJIV NARAIN RAINA, J. 1. In this order the parties are referred to by their original positions in the suit. Plaintiff has brought this revision against the order dated April 22, 2013 passed by Civil Judge (Junior Division) Jagadhri whereby application for amendment of the written statement has been allowed. The plaintiff filed suit for declaration to the effect that he is exclusive owner in possession of land measuring 42K-02M comprising Khewat/Khatoni No. 237/20/98 in Khasra Nos. 20/14 Min as described in Prayer A. Prayers B to D are description of properties of defendants 2 and 3 and defendants 4 and 5 respectively with their lands described in the said three prayers. Prayer E relates to a rasta of two gathas in which the claim share, of defendant 1 is 2/3rd while the share of the plaintiff is 1/3rd and two gathas multiplied by two gathas of the rasta on the Northern-Western corner of Khasra No. 20/18. The plaintiff and the defendants are related to each other. Defendant 3 is the widow of Ashok Kumar who is the decedent brother of the plaintiff and defendant 2 is the son of defendant 3. The plaintiff relied on a family settlement by which it is alleged that the parties were put in possession of their respective shares as per the family arrangement. Defendant 1, defendants 2 and 3 and defendants 4 and 5 filed separate written statements admitting the claim of the plaintiff and the existence of the family settlement. These written statements were filed in August, September and October 2011 respectively. On February 11, 2012 a compromise deed was placed on record with each party signing the same before the trial Court. The parties had appeared through counsel before the trial court. The statements of defendants 1, 4 and 5 were recorded before the court admitting the compromise. However, the statement of defendants 2 and 3 could not be recorded on February 11, 2012 and the case was adjourned for recording of their statement. When the application was filed by the plaintiff under Order 23 Rule 3 of the Code of Civil Procedure to decree the suit in terms of the compromise defendants 2 and 3 denied the factum of family settlement/compromise alleging that the compromise has been obtained by fraud and misrepresentation of facts. Defendants 2 and 3 pleaded that they have never admitted the claim. Defendants 2 and 3 pleaded that they have never admitted the claim. The plea of the con testing defendants was that they had never authorized any counsel to file a written statement on their behalf and the alleged compromise in Court and the written statement and the compromise have been obtained by playing fraud and by misrepresenting the facts. The reply of defendants 2 and 3 to the application under Order 23 Rule 3 CPC was verified on February 14, 2013 at Jagadhri. 2. In this background, defendants 2 and 3 filed an application under Order 6 Rule 17 of the CPC read with Section 151 CPC for permission to amend the written statement filed on their behalf in order to contest the suit on merits. It was pleaded that the said two defendants are 'illiterate' persons while plaintiff is an advocate by profession practising in District Courts at Jagadhri who wants to grab the property of the two defendants which otherwise stands in their names in the revenue record and the same is owned and possessed by them as per the respective shares. It is alleged by them that the plaintiff has obtained a loan on some of the suit property as security which property is the one mentioned in Prayer C of the plaint which relates to defendants 2 and 3. In the suit, the plaintiff claims 42K-02M of land as his as against defendant No. 1 shown to own 25K-10M while defendants 4 and 5 are mentioned as owners in possession of 01K-10M of land whereas defendants 2 and 3 are shrunk as owners of only 18K of land as per the plaintiff. 3. The plaintiff contested the application unsuccessfully. The learned Civil Judge (Junior Division) Jagadhri by order dated April 22, 2013 has allowed the application and permitted defendant Nos. 2 and 3 to amend their written statement to enable them to contest the suit on merits against the brother-in-law, the plaintiff. 4. The plaintiffs argument before the learned trial Judge was that the amendment, if allowed, would change the nature of the pleadings and amount to withdrawal of an admission made by the contesting defendants has not won favour of the court which has reasoned and rightly too that it is always open to a party to show that the admission made earlier was erroneous on facts or was induced by fraud and misrepresentation. 5. 5. Mr. Dinarpur appearing for defendants 2 and 3 submitted that the plaintiff is an Advocate and the original written statement of defendants 2 and 3 were made by the plaintiffs associate counsel who share a common basta in district court complex at Jagadhri, District Yamunanagar and that is why the two defendants have had to engage a counsel to contest the suit. When the matter was being heard before this Court the plaintiff was present in Court and came forward to his counsel he did not deny that the written statement of defendants 2 and 3 was prepared in the manner disclosed by Mr. Dinarpur. I take it that contesting defendants did not on their own free will engage counsel who signed the written statement to represent them in the trial court. If they are illiterate and this fact is not disputed then they may not have understood the revenue jargon of land description in the written statement and, therefore, there is a likelihood of collusion between the plaintiff and the associate counsel and a trusting sister-in-law and her son then it prima facie appears they may have a valuable right to contest the suit on merits by disclaiming the offending written statement. 6. In the facts and circumstances of the case as brought out during hearing of the matter then I do not think that defendants 2 and 3 should be pinned down to their written statement and be taken forever to have admitted the claim of the plaintiff only to be done out of substantial suit property ex facie distributed unequally among co-sharers ruled by principles of natural succession, an inheritance confirmed by the plaintiffs claim based on a family settlement. This is however said without making any further comment as to the contents of the application under Order 6 Rule 17 of the CPC since that lies in the first instance in the province of the trial Court on evidence which may be adduced by the respective parties in proof of their cases, pro and contra. 7. The plaintiff then relies on the decision of this Court in Alit Kumar v. Kiran Kumari and others, (2007-4) 148 PLR 634 to contend that withdrawal of an admission made before the court on the ground of fraud and misrepresentation would cause serious prejudice to the opposite party and accordingly cannot be allowed to be withdrawn or retracted. 7. The plaintiff then relies on the decision of this Court in Alit Kumar v. Kiran Kumari and others, (2007-4) 148 PLR 634 to contend that withdrawal of an admission made before the court on the ground of fraud and misrepresentation would cause serious prejudice to the opposite party and accordingly cannot be allowed to be withdrawn or retracted. In Ajit Kumar's case, an application was made under Order 6 Rule 17 CPC to withdraw the written statement filed by the defendant without incorporating material facts or belief upon which the fraud and misrepresentation was practiced. If an application is without any details it cannot be lightly accepted. In these circumstances, the order of the trial Court allowing the amendment was set aside. 8. In the present case, sufficient reasons have been shown which may form by itself a triable issue which does not deserve to be foreclosed by court by rejecting outrightly the amendment prayed for. It is a trite proposition of law that a party seeking to displace the plaintiff completely from admissions made by the defendant in the written statement by introducing an entirely new case should not be accepted and such an application is liable to be rejected but in the present case sufficient reason has ex facie been shown by the suspicious circumstances which led to the filing of the written statement itself as being one induced by fraud and misrepresentation practiced on an unsuspecting family member whose late husband was the plaintiffs brother who would normally be legally entitled to receive an equal share depending on the number of inheritors of the ancestral property in absence of a testamentary succession. Then I see no reason why the door of the trial Court should be shut for defendants 2 and 3 for all times in seeking justice by adjudication of their respective claims in the suit. 9. In such circumstances, the decisions of the Supreme Court relied upon by the plaintiff in Heeralal Vs. Kalyan Mal and Others, (1998) 1 SCC 278 , B.K.N. Narayana Pillai Vs. P. Pillai and Another, (2000) 1 SCC 712 and Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. 9. In such circumstances, the decisions of the Supreme Court relied upon by the plaintiff in Heeralal Vs. Kalyan Mal and Others, (1998) 1 SCC 278 , B.K.N. Narayana Pillai Vs. P. Pillai and Another, (2000) 1 SCC 712 and Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., (1976) 4 SCC 320 would come to the rescue of the plaintiff who is a beneficiary under the alleged family settlement of a disproportionately larger tract of land as compared to his late decedent brother whose son and widow are defendants 2 and 3 which dispensation Mr. Dinarpur castigates as an ex facie unfair division of ancestral property between brothers, one dead and one alive, in the proportion of 18 Kanals as against 42K-02M. The propositions of law as settled in the cited case law are past cavil as all of which are binding precedents to be followed but are at the same time clearly distinguishable on facts compared to what one finds here and the dicta laid down therein would not hermetically seal the fate of issues raised in this case which by and large turns on its own facts and circumstances. Then it can well be said that the tentative balance of probability of the version of the contesting defendants of being waylaid in the making of an adverse written statement without being fully apprised of the consequences of their actions by the plaintiff or his lawyer friend tilts the balance of truth and therefore the scales of justice in their favour for the amendment to be carried. 10. More further, it cannot be forgotten that defendants 2 and 3 did not sign the compromise presented by the plaintiff before the Court. When they did not sign to compromise the matter according to the wishes of the plaintiff, which in any case they could not legally be compelled to, then the case was got adjourned to await their appearance. But in the interregnum better sense prevailed when they suitably apprised by the counsel of their choice newly engaged to appear for them who saw through the plan and advised restraint from signing up the compromise deed evidently warning them of a serious rights deprivation in the offing in case they did. But in the interregnum better sense prevailed when they suitably apprised by the counsel of their choice newly engaged to appear for them who saw through the plan and advised restraint from signing up the compromise deed evidently warning them of a serious rights deprivation in the offing in case they did. This lawful reflection is what led to the filing of the application for amendment of the written statement which has been rather fairly allowed by the learned trial Judge recording legally acceptable reasoning in doing so. Hence, the order in challenge is endorsed and held as one not open to correction on the revision side under Article 227 of the Constitution. For the foregoing reasons, I do not find any merit in this petition which is ordered to be dismissed.