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2018 DIGILAW 284 (UTT)

Jyoti Kainth v. Neelam

2018-05-22

MANOJ K.TIWARI

body2018
JUDGMENT : 1. By means of this petition, under Article 227 of the Constitution of India following relief has been sought: “Issue a suitable writ, order or direction setting aside the impugned order dated 04.01.2018 (Annexure NO. 4 to the writ petition), passed by the learned First Additional District Judge, Roorkee District Haridwar in Civil Appeal No. 27 of 2016, Smt. Jyoti Kainth Vs. Smt. Neelam.” 2. This is defendant’s petition against the order dated 04.01.2018 passed by 1st Additional District Judge, Roorkee (Haridwar) in Civil Appeal No. 27 of 2016, whereby her application seeking leave to amend her written statement has been rejected. 3. Brief facts of the case are as follows: 4. Petitioner is defendant in a partition suit, which was numbered as Original Suit No. 207 of 2014. The said partition suit was filed by wife of elder brother of petitioner’s husband with the contention that the plaintiff and defendant are having equal share in the suit property, which was jointly purchased by them from one Mr. Seva Ram by a registered sale deed dated 20.01.1993. 5. The petitioner/defendant filed her written statement, contending that since the suit property was small in size and was not adequate for accommodating two families, therefore it was agreed that the plaintiff and her husband will surrender their right over the suit property upon payment of 50% of the estimated price of the suit property. Thus, according to the petitioner/defendant, the plaintiff has relinquished her rights over her share in the suit property upon payment of Rs. 2,00,000/-. 6. The partition suit was decreed vide judgment and order dated 04.10.2016 as the petitioner/defendant was not able to prove the oral settlement. Learned trial court considered the statement made by the petitioner/defendant in her cross examination, where she stated that she do not remember the date on which the settlement had been arrived at between her and the plaintiff. 7. Feeling aggrieved by the judgment and decree passed by learned trial court, petitioner/defendant filed an appeal before learned District Judge, Haridwar, which is registered as Civil Appeal No. 27 of 2016. Petitioner filed amendment application before learned Appellate Court, which has been rejected by the order dated 04.01.2018, which is impugned in the writ petition. 8. 7. Feeling aggrieved by the judgment and decree passed by learned trial court, petitioner/defendant filed an appeal before learned District Judge, Haridwar, which is registered as Civil Appeal No. 27 of 2016. Petitioner filed amendment application before learned Appellate Court, which has been rejected by the order dated 04.01.2018, which is impugned in the writ petition. 8. The explanation given by the petitioner/defendant for seeking leave to amend the written statement at the appellate stage is that the new counsel informed her that certain facts, which ought to be pleaded in the written statement, have not been pleaded. By the said amendment, petitioner sought permission to insert date of oral settlement as 05.05.2000 in paragraph no. 23 of her written statement. Petitioner further sought leave to amend paragraph no.24 for mentioning mode of payment of the amount alleged to have been paid in terms of the settlement alongwith dates of such payment. Another amendment was sought in paragraph no. 26 of the written statement, for incorporating plea of acquiescence on the part of the plaintiff. 9. Learned Appellate Court vide order dated 04.01.2018 rejected defendant’s amendment application by holding that the proposed amendment does not appear to be bonafide and she has not acted with due diligence. 10. Learned counsel for the petitioner has placed reliance upon a judgment rendered by Hon’ble Supreme Court in the Case of Gurbaksh Singh Vs. Buta Singh passed in Civil Appeal No. 4568 of 2018. Relevant portion of paragraph no. 8 of the said judgment is extracted below: “At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel & Others v. Gattu Mahesh and Others and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd and Others. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.” 11. Learned counsel for the petitioner has placed reliance upon another judgment of Hon’ble Supreme Court reported in (2017) 5 SCC 212 . Paragraph no. 16 of the said judgment is extracted below: “It is true that there was some delay on the part of the appellant in filing the application but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bonafide, relevant and necessary for deciding the rights of the parties involved in this list.” 12. On the other hand, learned counsel for the respondent submits that petitioner wants to fill up the lacuna by the proposed amendment and if the amendment application is allowed, the parties will have to lead fresh evidence, which will cause unnecessary delay. He further submits that under the garb of amendment, new facts cannot be brought and lacunas cannot be filled up, therefore, the amendment application was rightly rejected. 13. Proviso to Order 6 Rule 17 C.P.C. provides that amendment of pleadings cannot be allowed after commencement of trial 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. 14. It is settled position in law that a party to a suit cannot be permitted to wriggle out of an admission made by him earlier. 14. It is settled position in law that a party to a suit cannot be permitted to wriggle out of an admission made by him earlier. An amendment cannot be allowed, where it causes irreparable prejudice to the other party. The facts sought to be added in the pleadings are not such, which were not known to the petitioner earlier. Petitioner could have mentioned the said facts in her written statement or could have sought leave to amend written statement before commencement of trial. The amendment sought to be made by the petitioner is aimed at improving her case at the appellate stage by filling up the lacuna, which cannot be permitted. 15. In such view of the matter, there is no scope for interference with the order dated 04.01.2018 passed by learned Appellate Court. The writ petition fails and is hereby dismissed. 16. No order as to costs.