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2014 DIGILAW 843 (PNJ)

Sewa Singh v. Piara Singh

2014-05-14

BHARAT BHUSHAN PARSOON

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JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- This civil revision petition has been filed under Article 227 of the Constitution of India invoking supervisory powers of this Court by the petitioner who is defendant in the civil suit pending before the Court of Civil Judge (Junior Division), Phillaur, wherein an application under Order VI Rule 17 CPC moved by the petitioner-defendant has been dismissed. 2. By way of application for amendment of the written statement, the petitioner-defendant had sought to introduce pleadings regarding one mortgage deed of 10.2.1982 qua land comprising khasra No.34/21/3 and 47/1/3, total measuring 4 kanal 16 marlas. This request was strongly opposed by the respondent-plaintiff. Prayer of the defendant for seeking the amendment of the written statement was found to be of no merit and was dismissed vide the impugned order dated 2.5.2014 (Annexure P-6). 3. The petitioner-defendant in this revision petition has taken up a stand that this amendment could not have been refused by the lower court because it was to minimize the litigation and amendment in pleadings is permissible even at the appellate stage. 4. Hearing has been provided while perusing the paper book. 5. At the outset, Counsel for the petitioner has contended that since it is permissible in law to amend the written statement even to introduce new defence even if it is aimed at to bring in altogether inconsistent stand, the amendment sought by the petitioner-defendant could not have been refused by the lower court. Reference has been made to Usha Balashaheb Swami & Others v. Kiran Appaso Swami & Others, [2007(2) Law Herald (SC) 1281] : AIR 2007 SC 1663 . Citing yet another judgment reported as Andhra Bank v. ABN Amro Bank N.V. & Others, [2007(3) Law Herald (SC) 2210] : AIR 2007 SC 2511 , Counsel for the petitioner has urged further that even delay is no ground for refusal of prayer for amendment of the pleadings. 6. At this stage, it is better to understand the rival claims of the parties. Suit of the respondent-plaintiff is based on a mortgage deed of 10.11.1971, which allegedly was executed in favour of the respondentplaintiff by Phuman Singh, father of the petitioner-defendant. It is claimed by the plaintiff that he has become owner in possession of the land in suit, which was subject matter of the mortgage deed of 10.11.1971 by efflux of time as the same was not redeemed. It is claimed by the plaintiff that he has become owner in possession of the land in suit, which was subject matter of the mortgage deed of 10.11.1971 by efflux of time as the same was not redeemed. 7. Categorical stand of the petitioner-defendant in the suit by way of his written statement is of denial of such transaction i.e. the mortgage deed of 10.11.1971, propounded by the respondent-plaintiff. It is claimed that the mortgage deed is an act of fraud and misrepresentation. Entries in the revenue record in favour of the plaintiff had also been challenged. In addition, it was also pleaded that alleged mortgager Phuman Singh had even deposited the mortgage amount of Rs.2,830/- with Sarwan Singh, father of the plaintiff vide a duly executed receipt, copy of which had also been made part of the record. 8. By way of amendment in the written statement, the defendant had sought to introduce some mortgage deed of 10.2.1982, claiming that the same was also got redeemed. 9. At this stage, reference to proviso to Rule 17 of Order VI, introduced by way of Amendment Act, 2002 is necessary. It reads as under:- “Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 10. Counsel for the petitioner has contended that even this amendment does not come in his way in view of Usha Balashaheb Swami’s case (ibid). When perusal of this judgment is made making reference to the said proviso, in para 18 of this judgment, it was observed by the Hon’ble Apex Court as under:- “... The proviso to Order 6 Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced.” 11. In the cited authority, since the trial of the suit had yet not commenced, proviso to Rule 17 of Order VI CPC was not applicable. 12. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case, as the trial of the suit has not yet commenced.” 11. In the cited authority, since the trial of the suit had yet not commenced, proviso to Rule 17 of Order VI CPC was not applicable. 12. So far as decision of the Hon’ble Supreme Court on principles of law is concerned, following lines of para 18 of this judgment are noteworthy:- “From a bare perusal of Order 6 Rule 17 of the Civil Procedure Code, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendment of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties.” (underlining added) 13. Even in Andhra Bank’s case (supra), i.e., yet another judgment cited by Counsel for the petitioner, it was observed by the Hon’ble Apex Court as under:- “The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit.” 14. For adjudication of the application for amendment of the written statement filed by the defendant, the most important question posing for answer is as to whether amendment sought by the defendant would be necessary for decision of the real dispute between the parties in litigation? 15. Applying this law laid down by the aforesaid two verdicts of the Hon’ble Apex Court, it is evident that the amendment sought for by the defendant is neither necessary nor would help adjudication of the dispute between the parties in the suit. Rather, allowing of the application would introduce multifariousness creating confusion, which would blur the main dispute to be decided. 16. Even if the aspect that the suit is fixed for final hearing when the evidence has already been led by both the parties and arguments are to be addressed after leading of the rebuttal evidence, if any, is ignored, it is manifest that suit of the plaintiff is based only on mortgage deed of 10.11.1971 regarding which pleadings of the parties are complete and they have already led their respective evidence, where the matter is to be argued finally for its adjudication on merits. The mortgage deed of 10.2.1982 sought to be introduced is not only of 11 years later than the mortgage deed of 10.11.1971 which is subject matter of litigation but the plaintiff is not even a party to the same. Facts and circumstances of mortgage deed of 10.2.1982, sought to be introduced by way of amendment, are distinct, set apart and different from the facts and circumstances where mortgage deed of 10.11.1971 only is in question. 17. When amendment sought to be introduced by the petitioner is neither connected with the mater in issue materially and substantially in the said suit nor comes in support and sustenance to be used as succour and strength for adjudication of the matter in controversy, it is not required to decide the matter in controversy between the parties, it fails the test laid down in both the authorities of the Hon’ble Apex Court, which have been introduced by Counsel for the petitioner himself. 18. Rather, instead of advancing the cause of justice and helping curtailment of litigation, the application for amendment of the written statement would bring in multiplicity of litigation, multifariousness and would not only blur but even side-track the controversy in the suit between the parties. There is no merit in the revision petition and the same is hence dismissed in limine. ---------0.B.S.0------------