GULWANT KAUR Vs. MOHINDER SINGH

JUDGEMENT

(1.) IN a suit for possession of the disputed land filed by Mohinder Singh and Gurmel singh respondents 1 and 2 (hereinafter called the plaintiffs) on the basis of a registered sale-deed executed in their favour on June 18, 1968, by the husband of the defendant-petitioner, the defence of the petitioner was that the disputed property had been gifted to her on April 13, 1956, that the gift was oral, was accompanied by possession and that the petitioner had been in continuous possession of the land through her son Madan Jit Singh (respondent No. 3 before me) since April, 1956. After the conclusion of the evidence led by the plaintiffs in the affirmative and of the evidence led by the defendant-petitioner and before the recording of the plaintiffs' evidence in rebuttal, an application was made by the petitioner in the trial Court under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend her written statement so as to add an alternative defence to the claim of the plaintiffs about her being not liable to deliver possession to the plaintiffs on the ground that even if she was not able to prove the oral gift, she had become an absolute owner of the property by adverse possession as she had been in continuous possession of the property since April, 1956. By his order, dated November 10, 1971, the learned Subordinate Judge, Sangrur, dismissed the application of the petitioner by holding that if the amendment was allowed, it would change the nature of the defence and that a new ground of defence could not be permitted to be added by amending the written statement. He held that the new defence sought to be added would be entirely inconsistent with and contradictory to the original plea taken by the petitioner in her defence and would also result in setting up a new case for her. The application was disallowed with the observation that it had been given for delaying the decision of the suit which had been pending for more than three years.

(2.) MR. S. P. Goyal, the learned counsel for the petitioner, has referred me to the judgment of my Lord, the Chief Justice, in Raghvir Prasad v. Chet Ram, 1971 Cur lt 612 (Punj ). In that case it has been held that under O. 6, R. 17 of the Code of plaintiff may add a new cause of action and the defendant may add a new defence. It was observed that even a new case may be allowed to be introduced, and that there is no injustice if the other side can be compensated for it by costs. The learned Chief Justice also observed that the mere fact that the cause of action has been changed is no ground per se for disallowing the amendment. In that case the question related to the amendment of the plaint. The suit had been filed for possession of a house by Raghvir Prasad and his sister Tara Wati on the basis of inheritance. Subsequently, they had applied for leave to amend the plaint so as to claim the same property on the basis of a will. The trial Court refused the amendment. While allowing the revision petition against that order, the High Court held that there was no reason why the plaintiffs in that case should be prevented from having the cause of action sought to be added by the amendment adjudicated upon. The judgment of the learned Chief Justice in the case of Raghvir prasad (supra) no doubt supports the petitioner's claim for amendment for her written statement.

(3.) MR. T. S. Mangat has on the other hand pressed into service the judgment of my Lord, the Chief Justice in Gurmukh Singh v. Dalip Singh, 73 Pun LR 830= (AIR 1971 Punj 418) on which reliance has also been placed by the trial Court for passing the order under revision. In that case the trial Court had allowed an amendment of the plaint in a suit for pre-emption so as to permit the plaintiff therein to claim a superior right of pre-emption on the ground of his being a cosharer, after the expiry of the period of limitation for filing the suit when the only ground on which the right of pre-emption had originally been claimed in his plaint was that the pre-emptor was the brother's son of the vendor. Setting aside that order in revision, it was held by the High Court that the amendment allowed introduced into the plaint a ground which did not exist therein before and which had got absolutely no connection with the grounds taken earlier. In those circumstances it was held that the trial Court did not exercise its discretion under order 6, Rule 17 of the Code of Civil Procedure in a judicial manner and had transgressed its jurisdiction in allowing a new ground for claiming a superior right of pre-emption being taken at the time when a suit based on that ground would have been barred by time. The considerations which weighed with the learned chief Justice in Gurmukh Singh's case are not at all present in the case before me. The taking up of the new defence by the petitioner in the alternative by amending her written statement is not barred by time. The defence is not based on any new set of facts. In fact it is intimately connected with the defence already set out. The date from which the petitioner claims to be in possession is the same. She did not claim to have been in permissive possession under her husband at any stage since april, 1956. In each of the two pleas in question, she claims to have been in possession as owner which would in either eventuality be adverse to the interest of her husband. All that the seeks to plead is that if she fails to prove the oral gift, but succeeds in proving that she had been in possession of the property in dispute since April 13, 1956 in the purported exercise of her right as owner of that property, her such possession had itself ripened into title by adverse possession. I am not concerned with the fact whether her such plea is at all likely to succeed or not but only with the fact that the new plea sought to be added is not at all inconsistent with the original plea, but is merely sought to be taken up in the alternative. Considerations for allowing an amendment of plaint in a pre-emption suit are entirely different.