AJIT BALI Vs. ARJUN SINGH MANSUKHANI

JUDGEMENT

(1.) This is an application under Order 6 Rule 17 read with Section 151 Civil Procedure Code filed by defendants 1 to 5 for amendment of the written statement filed by the defendants 1 to 5. Mr.Mehta, learned counsel for the defendants has contended that by the present application,defendants 1 to 5 seek to amend their written statement and want to add additional pleas. Broadly speaking the first amendment sought for by the defendants/applicants is that the plaintiff have a right by virtue of section 53A of the Transfer of Property Act as predecessor-in-interest of the defendants came in occupation of the property after executing the agreement to sell dated 23/7/1961 and pursuant to an irrevocable power of attorney dated 15/9/1961 issued by R.C.Bali in favour of Mrs.Gunwati Singh, sister of predecessor in interest of the defendants. The second amendment is based on Section 202 of the Contract Act. It has been contended that in view of execution of power of attorney dated 15/9/1961 and in view of the fact that possession of the property came in the hands of the predecessor-in-interest of the applicant/defendants, the non-applicant/plaintiff is estopped from challenging the ownership as well as possession of the applicant. Third amendment sought for by the defendants/applicants is that the applicant now and their predecessor-in-interest earlier have been in continuous possession of the property in question and they have enjoyed the same without any let and hindrance and,therefore, pursuant to Section 27 of the Limitation Act and even otherwise, they have become owner of the property. Last amendment sought for is that the present suit is for partition and the same is not maintainable as admittedly, the applicants are in possession of the suit property and no Court fee has been paid by the non-applicant/plaintiff.

(2.) .It has been further contended before me by Mr.Mehta that the application for amendment has been made at the earliest opportunity as issues have not yet been framed and the scope for allowing amendment is larger in case of written statement than in case of plaint. In support of his contention, learned counsel for the defendants has cited B.K.N. Pillai Vs. P. Pillai and anr. AIR 2000 SC 614.On the other hand, Mr.Nayar, learned senior counsel for the non-applicant/plaintiff has not seriously challenged the amendment with regard to the effect of part performance and possession taken by the applicant and the applicability of Section 53 A of the Transfer of Property Act. Similarly whether the plaintiffs are estopped from challenging the ownership of the defendants/applicant in view of agreement to sell and power of attorney dated 15/9/1961 has also not been challenged.

(3.) Mr.Nayar has made serious challenge to the amendment sought by the applicant with regard to the amendment by way of insertion of pleadings as preliminary objection no.7. It has been contended by Mr.Nayar that in written statement filed earlier no such plea was taken which is sought to be taken by the applicants at this stage. It is contended that the admission made by the applicants in the written statement in relation to certain paragraphs of the pleadings would be diluted if the amendment is allowed and the same would change the nature of the defence taken by the defendant when the earlier written statement was filed. He has further contended that all the facts pleaded in the application for amendment were within the knowledge of the applicants/defendants, therefore, the amendment sought for are dilatory tactics as well as mala fide. He has contended that amendment with regard to the maintainability of the suit, which is a suit for partition, whether the same is maintainable or not, that is a question which can be decided later as issues have not yet been framed and the effect of maintainability of suit cannot be decided at this stage. Therefore, the amendment sought on this ground is neither necessary nor proper for adjudicating the controversy between the parties.