HARISH CHANDER ALIAS HARISH BOURI Vs. RAJESH MALHOTRA

JUDGEMENT

(1.) The present civil revision under Article 227 of the Constitution of India has been filed challenging the order dtd. 16/10/2018 (Annexure P-1) whereby an application filed by the defendant-petitioners under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') for amendment of the plaint has been dismissed. The petitioners are defendant Nos.1, 3, 4, 6, 7 and 8 before the Trial Court.

(2.) Brief facts relevant to the present lisare that the plaintiffrespondent No.1 filed a suit for possession by way of specific performance of the agreement to sell dtd. 6/10/2006 in respect of property bearing No.B-II1457 measuring approximately 200 sq. yards situated at Deepak Cinema Road, Ludhiana as well as for mandatory injunction and permanent injunction. The defendants filed a written statement dtd. 10/9/2014 wherein the execution of the agreement to sell was denied and it was stated in para 9 of the preliminary objections, as well as in the written statement on merits, that the alleged agreement to sell was a false, bogus and fabricated piece of document and the same did not bear the signatures of the defendants. The said written statement was signed by the defendant-petitioner No.1. A replication to the said written statement was filed by the plaintiff-respondent No.1. Issues were framed and after four witnesses of the plaintiff-respondent No.1 had been examined, an application (Annexure P-5) was filed on behalf of the defendant-petitioners under Order 6 Rule 16 CPC read with Order 6 Rule 17 CPC for amendment of the written statement. It was stated that though defendant-petitioner No.1 was a Solicitor by profession practicing in the UK, however, he was not aware about legal matters and procedures in India and hence he left everything to the counsel to provide with regard to the facts and subsequently it transpired that the counsel had committed a fraud with him. It was averred in the amendment application that a complaint was also filed with the Bar Council of Punjab and Haryana as well as with the Police against the counsel. By the amendments sought, the defendant-petitioners wanted to amend the preliminary objections so as to not deny the execution of the agreement; raising an objection regarding the suit having been filed against dead persons; raising an objection regarding non-joinder and misjoinder of parties; raising an objection that the plaintiffrespondent No.1 had not performed his part of the contract and that the agreement was cancelled on 31/5/2008. In the amendment sought to the written statement on merits, the defendant-petitioners wanted to inter-alia raise a plea that they had never executed the agreement to sell and it was a forged document since the witnesses had entered on it later on but even if was presumed that they had executed the agreement the same was not on proper stamp paper and was not admissible in evidence. The amended written statement was intended to be on behalf of the defendant-petitioners only since defendant Nos.2 and 5 (respondent Nos.2 and 3 herein) were dead even prior to the filing of the suit.

(3.) The plaintiff-respondent No.1 filed a reply (Annexure P-6) contesting the amendment application averring that it had been moved at a belated stage and was time barred. It was also submitted that the amendment could not be allowed as trial of the suit had already commenced and further that the admissions made earlier were being sought to be withdrawn. Vide impugned order dtd. 16/10/2018 the Trial Court dismissed the amendment application holding inter-alia that ".............The applicants wants to take contradictory to their earlier pleadings through purposed amendment which is not permissible. The plaintiff has already recorded examination in chief of 4 witnesses in order to counter the pleading of applicants taken in their written statement. The provisions of order 6 rule 17 CPC permits a party to introduce subsequent facts or facts which are not earlier in their knowledge by way of amendment of their pleadings. A party cannot be allowed to take advantage of their negligence by moving application u/o 6 rule 17 CPC. The arguments raised by the counsel for the applicants is not sustainable that defendants no.1 did not knows the technicality of law in India when he has admitted the defendant no.1 is practicing as solicitor in England". The Trial Court also held that "In the present case also the purposed amendment amounts to withdrawal of earlier admission made by the applicants".