Punjab-Haryana High Court
Krishan vs Rajpal Singh on 1 November, 2022
122
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2927-2022 (O&M)
Reserved on : 27.10.2022
Date of Decision: 01.11.2022
Krishan ....Petitioner
VERSUS
Rajpal Singh ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sansar Kundu, Advocate for the petitioner.
Mr. R.N. Lohan, Advocate for the respondent.
ALKA SARIN, J.
The present civil revision petition under Article 227 of the
Constitution of India has been filed challenging the order dated 07.09.2021
passed by the Trial Court whereby the application filed by the defendant-
petitioner for amendment of the written statement has been dismissed.
Learned counsel for the defendant-petitioner would contend
that the defendant-petitioner wanted to add a paragraph to his written
statement which paragraph reads as under :
"Prior to the agreement in question the defendant
entered into an agreement to sell regarding the suit land
with Mahabir son of Ram Narain r/o H. No.1517 Urban
Estate, Jind on 18.11.2014 which was got entered in the
register of Notary Public Distt. Courts, Jind. The
YOGESH SHARMA
2022.11.01 11:39
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
CR-2927-2022 (O&M)
plaintiff has concealed that agreement from this Hon'ble
Court as it was in possession of Mahabir and plaintiff
himself. The plaintiff in connivance with Mahavir has
played fraud with the defendant. The plaintiff along
with Mahabir and Ramesh Kundu has played a fraud
with the defendant and this agreement is a part of fraud
play by the defendant his men."
It is further the contention of learned counsel that the question
qua the said earlier agreement was already put to Mahabir, who admitted the
execution of the said agreement. Learned counsel for the defendant-
petitioner has relied upon the judgment of the Hon'ble Supreme Court in the
case of Life Insurance Corporation of India Vs. Sanjeev Builders
Private Limited & Anr. [Civil Appeal No.5909 of 2022 (Arising out of
SLP(C) No. 22443 of 2019) decided on 01.09.2022].
Per contra, learned counsel for the plaintiff-respondent has
relied upon the judgment of the Hon'ble Supreme Court in the case of
Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib
Dhuka & Ors. [2013 (2) RCR (Civil) 965 (SC)].
Heard.
The brief facts relevant to the present lis are that the plaintiff-
respondent filed a suit for specific performance of the contract dated
15.07.2016 alleged to have been executed by the defendant-petitioner in
favour of the plaintiff-respondent and further directing the defendant-
petitioner to execute the sale deed in favour of the plaintiff-respondent. The
suit was contested by the defendant-petitioner who filed his written
statement. After the plaintiff-respondent had led his evidence, an application
YOGESH SHARMA
2022.11.01 11:39
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
CR-2927-2022 (O&M)
under Order 6 Rule 17 CPC was filed for amendment of the written
statement to add the plea that prior to the agreement involved in the present
case, the defendant-petitioner entered into an agreement to sell regarding the
suit land with Mahabir and that the plaintiff-respondent in connivance with
Mahabir had played a fraud with the defendant-petitioner and that the
present agreement was a part of the said fraud. The application was
contested by the plaintiff-respondent on the ground that the evidence of the
plaintiff-respondent was closed on 06.02.2018 and that thereafter, instead of
leading the evidence, the present application for amendment of the written
statement had been filed. Vide the impugned order, the amendment
application has been dismissed.
Learned counsel for the plaintiff-respondent has not been able
to deny the fact that in cross-examination Mahabir has admitted that prior to
the agreement to sell in the present case, an agreement had been entered into
with him by the plaintiff-respondent. Hon'ble Supreme Court in the case of
Life Insurance Corporation of India (supra) has held as under :
"70. .........
(ii) All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the latter
part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
YOGESH SHARMA
2022.11.01 11:39
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
CR-2927-2022 (O&M)
(i) if the amendment is required for effective and
proper adjudication of the controversy between the
parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim
would be time barred becomes a relevant factor for
consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
YOGESH SHARMA
2022.11.01 11:39
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
CR-2927-2022 (O&M)
especially where the opposite party can be compensated
by costs.
(vi) Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid in
rendering a more satisfactory decision, the prayer for
amendment should be allowed."
In the present case the amendment would be necessary to do
complete justice between the parties and the same is not likely to cause any
prejudice to the plaintiff-respondent. The judgment relied upon by learned
counsel for the plaintiff-respondent in the case of Mashyak Grihnirman
Sahakari Sanstha Maryadit (supra) does not pertain to the amendment of
a written statement and is distinguishable on facts.
In view of the above and keeping in view the fact that no
prejudice would be caused to the plaintiff-respondent, the present revision
petition is allowed. The impugned order is set aside. The application for
amendment of the written statement shall accordingly stand allowed subject
to payment of Rs.30,000/- as costs to be paid to the plaintiff-respondent.
Pending applications, if any, also stand disposed off.
( ALKA SARIN )
01.11.2022 JUDGE
Yogesh Sharma
NOTE : Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
YOGESH SHARMA
2022.11.01 11:39
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
