KULDEEP SINGH Vs. RAJINDER SINGH

JUDGEMENT

(1.) Challenge in the present petition is to the order dated 12.5.2011, passed by the learned court below, whereby the application for amendment of the written statement filed by him, was dismissed. Briefly, the facts of the case are that the respondent-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 1.3.2007. The suit was filed on 27.5.2008. After the written statement was filed and the respondent-plaintiff had led part of the evidence, the application in question was filed by the petitioner-defendant seeking to amend the written statement to add the plea that in fact the property in dispute is ancestral and co-parcenary and the petitioner-defendant did not have any right to alienate, transfer or mortgage any part thereof. The application having been rejected, the petitioner-defendant is before this court.

(2.) Learned counsel for the petitioner-defendant submitted that the learned court below has gone wrong in dismissing the application filed by the petitioner for amendment of the written statement while considering the merits of the controversy, which was not required to be considered at that stage. The court was only to consider as to whether the amendment is necessary for proper adjudication of the dispute. He further submitted that in the written statement initially filed or by way of amendment as well, the defendant is entitled to take inconsistent pleas. The law for amendment of written statement is quite liberal. The fact pertaining to the property in dispute being ancestral and co-parcenary was informed to the counsel who had filed the written statement earlier, but he failed to mention the same in the written statement. It was only with the change of counsel when the same was noticed, the application in question was filed. In case there is some lapse on the part of the counsel, it falls within the exception in Order 6 Rule 17 CPC for permitting the party to amend the pleadings even after commencement of the trial. In support of various contentions, reliance was placed upon Baldev Singh and others v. Manohar Singh and another, 2006 AIR(SC) 2832 Andhra Bank v. ABN Amro Bank N.V. and others, 2007 AIR(SC) 2511 Usha Devi v. Rijwan Ahmad and others, 2008 AIR(SC) 1147 Chander Kanta Bansal v. Rajinder Singh Anand, 2008 AIR(SC) 2234 Sagar Singh Slathia v. Surinder Pal Singh, 2009 3 RCR(Civ) 37 and Ramanand v. Sedhu and others, 2010 2 RCR(Civ) 31.

(3.) On the other hand, learned counsel for the respondent-plaintiff submitted that a vendor in the agreement to sell is not permitted to take a plea that he was not competent or entitled to hold the property in question being not the owner thereof or otherwise. Once legally such a plea cannot be taken by the petitioner-defendant, there is no question of permitting him to amend the pleadings for incorporating such a plea in the pleadings by way of amendment. In support of the pleadings sought to be taken in the amended written statement, no revenue record has been produced to show that the property in question is co-parcenary. In fact, the revenue record clearly shows that the petitioner-defendant is owner of the properly. No affidavit of the counsel, who filed the written statement earlier has been filed in support of the argument that the fact regarding the property being ancestral was disclosed to him and he failed to take the plea in the written statement initially filed. It is merely a story being put up with the change of counsel to defeat the legitimate right of the respondent. Since the application has been filed after commencement of trial as after initial filing of the written statement on 12.11.2008, where the plea was taken that the alleged agreement to sell is a forged document, substantial evidence had already been led by the respondent-plaintiff when the application in question was filed. The agreement to sell was executed by the petitioner-defendant on 1.3.2007. Last date for execution of the sale deed was 1.3.2008, which was extended upto 26.3.2008 vide endorsement dated 29.2.2008. Even subsequent thereto, vide endorsement dated 26.3.2008, the same was extended upto 23.4.2008. Still the sale deed having not been got registered by the petitioner-defendant, the suit was filed immediately thereafter on 27.5.2008. In support, reliance was placed upon Mir Abdul Hakeem Khan v. Abdul Mannan Khadri, 1972 AIR(AP) 178 Deenanath v. Chunnilal, 1975 AIR(Raj) 69 and Ganpat Singh v. Chand Mal and another, 2005 2 RCR(Civ) 621.