MOHINDER KAUR Vs. SUKHCHARAN SINGH

JUDGEMENT

(1.) BOTH the revisions are with reference to the same order allowing for amendment of written statement and permission granted for additional evidence. The applications had been moved before the appellate Court in an appeal filed by the defendant against the decree for pre -emption. The suit had been instituted by one of the co -sharers complaining of the sale as not binding and seeking to enforce a right to pre -emption. The suit had been filed on 07.04.1990 challenging a transaction effected on 21.04.1989 by one of the co -owners. It appears that the suit was decreed on 04.03.1994. The defendant had preferred the appeal and the same was disposed of on an interpretation of the Haryana Amendment Act, 10 of 1995 that the right to pre -emption had been statutorily abolished. In the second appeal filed before this Court, the instant applications for amendment of written statement and additional evidence were filed setting up a plea that he had improved his status by additional purchases from other co -owners on 19.09.1989 and 01.06.1989. He also contended that he had effected some improvements in the property and sought for permission to lead additional evidence with reference to additional documents and the additional plea regarding the improvements. But by that time the law had been settled by the Supreme Court in Shyam Sunder v. Ram Kumar : 2001 (2) PLJ 332 holding that the Amendment Act will not affect transactions prior to the Act. While setting aside the order, the lower appellate Court was directed to consider the case on merits and also directed that the applications filed before it would also be placed before the appellate Court for consideration. The appellate Court has taken up the applications for amendment of the written statement and reception of additional evidence and allowed the same in part to the extent of allowing the defendant to take the plea regarding the purchases made by the defendant but declining amendment with reference to plea that he had effected some improvements in the property. Against this order, both the revisions have been filed, one at the instance of the plaintiff, who is aggrieved by an amendment ordered and the additional evidence permitted to be given and the defendant -appellant has also come in revision against restrictive order passed by the Court in allowing only a portion of his claim and rejecting consideration of his plea regarding the improvements made by him subsequent to purchase.

(2.) IN my view, the lower Appellate Court was erroneous on several counts. The application for amendment was brought with reference to some transactions of purchase purported to have been made by the defendant prior to the institution of the suit itself. It is, therefore, not possible to believe that the defendant did not know about these transactions. If the defendant was, however, setting up his defence only with reference to a particular sale which was sought to be assailed and in respect of which the plaintiff was seeking a right of pre -emption, the defendant was taking a calculated risk of not making a disclosure of two other sales which he claimed to have made from other co -owners. I would venture to believe that the defendant did not want to reveal the fact of other sales and invite an attack against them as well. The improvements upon property which he claimed that he had done was also essentially an improvement which ought to have been pleaded initially, since any person who makes an improvement on a belief that he is entitled to improvement, at his option, ask for appropriate reparation in the manner provided under Section 51 of the Transfer of Property Act. This again is a privilege which the law grants and, therefore, if the defendant was not setting up even the plea regarding improvements, he was deliberately not exercising his option. It must be noticed that even when he preferred an appeal, after the decree was passed, the defendant did not think it necessary to set up the pleas regarding alleged improvements and the purchases made by him in the year 1989. Not till the matter had come before this Court in second appeal and nearly a decade after the institution of the suit did the defendant file an application for amendment of the written statement. Although the amended provisions of 2002 relating to amendment with restrictions of when it could be brought under Order 6 Rule 17 is applicable only to suits after the amending Act, the principle would still be substantially the same. A party making the amendment must in some way be stating a fact which he did not know, in spite of due diligence and that, therefore, there was a justification for not making the plea earlier. If the reference is to a transaction where he claimed himself to be a party and he preferred not to refer to them in his pleadings, it was only because the defendant must be taken as opting not to make such a plea and now attempting to introduce a new plea would derail the case to further delay. It would always suit a defendant to delay in a situation like this, where one co -owner seeks right of enforcement of pre -emption. We are dealing with the case of transaction of the year 1989 put in challenge before the Court in 1990 and the plaintiff has still not seen the final outcome of decree. It is not expected that the decree passed by the first Court is always sustained and the defendant may just as well have a stout defence but the defendant must state everything in his armoury to non -suit the plaintiff. Even the new dispensation that has come through amendment of Order 8 Rule 1 requiring statement to be filed within a prescribed is a realization of the Indian experience that defendants take a long time to file the written statement and make difficult the exercise of rights which are asserted through Courts. Access to justice will have meaning only if the parties are sensitive to the requirement of pleadings in the manner best possible and do not allow for periodical amendments that can cause further delays. In this case, I find the application for amendment was deliberate and not bona fide at all. The Supreme Court has also adversely commented about the pernicious practice of bringing in amendment to pleadings at a belated stage, in Mashyak Grihnirman Sahakari Sanstha Maryadit v. Uman Habib Dhuka and others in Civil Appeal No. 3917 of 2013 decided on 18.04.2013. The Court could not have allowed application and lent a premium to the recalcitrance of the defendant. The plea made by him that all the documents had been entrusted by the counsel and counsel did not make a reference to the same in the written statement is too simplistic an averment that could be brought at any time. It is easy for parties to hurl abuses or negligence of the acts of counsel and it cannot be easily taken only to find an excuse for a defendant if he could not explain his own lapse. The order of the Court below is untenable and it is bound to be set aside and, accordingly, set aside. The revision filed in CR No. 7841 of 2010 shall succeed and the same is allowed. The revision filed by the defendant -appellant in CR No. 8089 of 2010 is dismissed with costs. Counsel's fee for both cases assessed at Rs. 10,000/ -.