Punjab-Haryana High Court
Dalbir Singh And Ors vs Beero on 24 January, 2023
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
268 CR No.1357 of 2014 (O&M)
Reserved on : 13.01.2023
Date of Decision : 24.01.2023
Dalbir Singh and Others ....Petitioners
VERSUS
Smt. Beero (deceased) through her LRs and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rajinder Sharma, Advocate for the petitioners.
Mr. G.S. Bhatia, Advocate for respondent nos.(i), (ii) (iii).
ALKA SARIN, J.
The present revision petition has been filed challenging the
order dated 18.01.2014 passed by the lower Appellate Court vide which the
application filed under Order VI Rule 17 CPC for amendment of the
written statement was dismissed.
The brief facts relevant to the present lis are that the plaintiff-
respondent no.1 filed a suit for declaration to the effect that she was the
owner in possession of half share of land measuring 70 kanals 15 marlas as
described in detail in the head-note of the plaint being legal heir of S. Bhan
Singh son of Veer Singh with a consequential relief of permanent injunction
restraining the defendant (Gurdit Singh) from alienating the suit property in
any manner. In para 3 of the plaint it was stated that the defendant (Gurdit
Singh) had got some false, frivolous and wrong entries in the revenue
record and thereby got mutation regarding the estate left by S. Bhan Singh
sanctioned in his name whereas he has no right, title or interest in the
property in dispute of S. Bhan Singh. In the written statement filed by the
defendant (Gurdit Singh) a plea raised was that the suit property had vested
JITENDER KUMAR
2023.01.24 10:44
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
in him some 40 years ago as per the jamabandi pertaining to the year 1970-
71. It was further the stand that the defendant (Gurdit Singh) was owner in
possession on the basis of a valid Will executed by S. Bhan Singh in his
favour. During the pendency of the suit the defendant (Gurdit Singh) died
and the present petitioners and the present respondent no.2 were impleaded
as his legal heirs. The suit filed by the plaintiff-respondent was decreed by
the Trial Court vide judgment and decree dated 08.08.2011. Aggrieved by
the said judgment and decree, an appeal was preferred by the legal heirs of
the defendant (Gurdit Singh) i.e. the present petitioners and the present
respondent no.2. During the pendency of the appeal, an application under
Order VI Rule 17 CPC was filed for amendment of the written statement to
introduce the plea that the defendants were owners in possession of the suit
property on the basis of a registered Will dated 08.05.1969 executed by
S. Bhan Singh in favour of the defendant (Gurdit Singh). The said
application was contested by the plaintiff-respondent no.1 and vide
impugned order dated 18.01.2014 the lower Appellate Court dismissed the
said application. Aggrieved by the said order, the present revision petition
has been filed. Though originally the present revision petition was filed by
all the legal heirs of the defendant (Gurdit Singh), however, subsequently
the original petitioner no.2 (Hira Singh) was ordered to be transposed as
respondent no.2 as he did not want to file the present revision petition.
Learned counsel for the petitioners would contend that the law
regarding amendment of written statement is more liberal as compared to
the law regarding amendment of a plaint. It is further the contention that
even at the appellate stage amendment of the written statement can be
permitted. Learned counsel for the petitioners, to buttress his argument, has
JITENDER KUMAR
2023.01.24 10:44
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
relied upon the judgment of the Hon'ble Supreme Court in Sushil Kumar
Jain vs. Manoj Kumar & Anr. [ 2009 (3) RCR (Civil) 899] and that of
this Court in case of Daljit Singh (deceased) through LRs vs. Sunita
(deceased) through LRs & Anr. [2017 (2) PLR 438].
Per contra learned counsel for respondent nos.(i), (ii) and (iii)
has contended that the amendment of the written statement at this stage
would amount to a de novo trial. It is further the contention that the stand of
the defendant (Gurdit Singh) was that he was owner in possession of the
suit property and further in para 3 of the original written statement it was
specifically admitted that the defendant (Gurdit Singh) was owner in
possession of the suit property on the basis of a valid Will executed by
S. Bhan Singh in his favour.
I have heard learned counsel for the parties.
In the present case the plaintiff-respondent no.1 filed a suit for
declaration to the effect that she was owner in possession of half share of
the land measuring 17 kanals and 15 marlas as described in the plaint. In the
written statement the stand taken by the defendant (Gurdit Singh) was that
the suit property had vested in him some 40 years ago and that he was
owner in possession of the suit property on the basis of a valid Will
executed by S. Bhan Singh in his favour. The challenge in the plaint was to
the illegal entries having been made in the revenue record in favour of the
defendant (Gurdit Singh). The defendant (Gurdit Singh) categorically
denied the revenue entries to be incorrect and claimed to be owner of the
suit property. The trial on the basis of pleadings and the evidence on the
record was conducted. The legal heirs of the defendant (Gurdit Singh), who
expired during the pendency of the suit before the Trial Court, were
JITENDER KUMAR
2023.01.24 10:44
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Chandigarh
impleaded as parties. Though, an application is stated to have been made by
the said legal heirs for framing of an additional, however, no effort was
made by them to file an application for amendment of the written statement.
It is only at the appellate stage that the application for amendment of the
written statement was filed on the ground that they became parties to the
suit on 23.07.2011 and that the omission to mention that the defendant
(Gurdit Singh) was the beneficiary of the Will was not willful or intentional.
What cannot be lost sight of is that from the very beginning the claim of the
plaintiff-respondent no.1 was that some false, frivolous and wrong entries
had been made in the revenue record qua the estate left by S. Bhan Singh in
favour of the defendant (Gurdit Singh) who had no right, title or interest in
the suit property. The defendant (Gurdit Singh) claimed himself to being
owner in possession of the suit property taking the stand that the suit
property vested in him some 40 years ago. The factum of a Will in his
favour was also mentioned in the written statement. There was no reason for
the defendant (Gurdit Singh) or his legal heirs for not having placed the
relevant evidence on the record or raising detailed pleas regarding the Will.
The application which has now been filed at the appellate stage would lead
to a de novo trial which cannot be permitted. There can be no quarrel with
the proposition of law as laid down in the cases of Sushil Kumar Jain
(supra) and Daljit Singh (supra). However, facts of each case need to be
considered individually. Having taken the stand that the defendant (Gurdit
Singh) was owner of the suit property 40 years prior to the filing of the suit,
there was no reason not to have pleaded the Will, if any, in detail in the
written statement.
JITENDER KUMAR
2023.01.24 10:44
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
In view of the above, I do not find any illegality or infirmity in
the impugned order passed by the lower Appellate Court. The present
revision petition, which is wholly devoid of any merit, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
Dismissed.
( ALKA SARIN )
24.01.2023 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
JITENDER KUMAR
2023.01.24 10:44
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
