SATWINDER KAUR Vs. GURDEEP SINGH

JUDGEMENT

(1.) This petition has been filed under Article 227 of the Constitution of India praying for setting aside the order dated 27.4.2017, passed by Additional Civil Judge (Senior Division), Malerkotla, vide which the application filed by the respondent under Order 6 Rule 17 CPC, for amendment of written statement, has been allowed.

(2.) Brief facts giving rise to the present petition are that the petitioner/plaintiff had filed a suit for recovery of an amount of Rs.45,97,500/- on the basis of an alleged pro-note and the receipt, claiming that an amount of Rs.30 lakhs was advanced to the respondent/defendant along with interest @ 1.5% per annum. The said claim was denied by the defendant/respondent on the ground that the pro-note produced by the plaintiff was a false and fabricated document. The issues were framed in the suit. The plaintiff led his evidence. At the time of leading his evidence, the plaintiff had moved an application for seeking samples of hand writing and signatures of the defendant to prove the signatures of the defendant on the said pro-note. However, despite repeated directions given by the trial Court, the defendant did not come forward to give the samples of his hand writing and signatures. The evidence of the plaintiff was closed on 3.1.2017. Thereafter and at this stage, the defendant moved the application seeking amendment of the written statement; to include therein the assertions, in which he again denied having executed the pro-note in question, however, tried to explain away the signatures on the alleged pro-note by asserting that the scribe of the pro-note Vijay Kumar son of Mulak Raj, who was a commission agent and with whom the defendant was having transaction of selling his crops used to get the signatures of defendant on his Bahi and on blank pro-notes. He might have preserved one such pro- note which is being misused through the plaintiff. Vijay Kumar had also availed loan from defendant. The said Vijay Kumar had also given a cheque to the defendant for repayment of that loan. However, the said cheque was defaulted. On account of the said default, the defendant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 as well. Although in the said complaint, Vijay Kumar has been acquitted, however, the revision filed against that acquittal is still pending before the High Court. Since the said Vijay Kumar was having animosity with the defendant, therefore, he might have helped the plaintiff in fabricating the alleged pro-note.

(3.) Arguing the case for the plaintiff/petitioner, learned counsel for the petitioner has submitted that the amendment should not have been allowed by the trial Court. There is nothing on record to substantiate the fact that earlier this averment could not have been made in the plaint. The defendant had not been vigilant in prosecuting his case. When the evidence of the plaintiff has been closed, then at a belated stage, the application has been moved by the defendant and has been wrongly allowed by the court. This would have the effect of taking the trial to the initial stage of framing the issues; and then the evidence of the parties. Still further, learned counsel for the petitioner has relied upon various judgments of this Court rendered in 'Jeetinder Singh v. Inderjit Singh Batra and others, 2012 (24) RCR (Civil) 176', and of Supreme Court in 'M/s Modi Spinning and Weaving Mills Co. Ltd. And another v. M/s Ladha Ram and Co., 1977 AIR (SC) 680, S.Malla Reddy v. M/s Future Builders Co-operative Housing Society and others, 2013 (2) RCR (Civil) 957, Vidyabai and others v. Padmalatha and another, 2009 (1) RCR (Civil) 763' to contend that the Court had no jurisdiction to allow the amendment in the written statement after the commencement of the trial. It is further submitted that the change of the counsel by the defendant is not the ground for allowing the amendment.