BALWANT SINGH Vs. BHIM SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 25.1.2013 by which application filed by the defendants for amendment of the written statement has been declined.

(2.) IN brief, the plaintiff filed suit for specific performance on the basis of agreement to sell dated 15.5.2004 in the year 2009. The written statement was filed in 2010, in which the petitioner had taken a stand that the agreement was not executed by him. It was alleged that the agreement might have been prepared on the blank thumb -marked papers, which were lying with the conciliator, who had earlier tried to patch up the dispute between the parties. The petitioner was also apprehensive that the thumb -marks appended on the agreement even might not be belonging to him therefore, he moved an application to the trial Court on 14.10.2011 seeking permission to examine and take photographs of the disputed and standard/specimen thumb impressions/signatures present on the file. The said permission was granted by the learned trial Court on 14.10.2011 itself. Thereafter, the petitioner engaged a handwriting and finger print expert, who took the thumb impression appended on the agreement as disputed thumb -impression and also took the specimen thumb impression available on the record belonging to the petitioner and compared the same and prepared his report dated 27.10.2011 as per which the thumb impression available on the agreement to sell were un -comparable being smudged in ink. After obtaining the record, the petitioner moved an application for amendment of written statement and at that time even the issues were not framed. The application was filed on 14.12.2012 but the learned trial Court declined the request of the petitioner vide its impugned order dated 25.1.2013 on the ground that the petitioner cannot be allowed to withdraw his admission as in the earlier written statement he had alleged that the thumb impressions appearing on the blank papers left with the conciliator might have been used for the purpose of preparation of the agreement to sell.

(3.) LEARNED counsel for the petitioner has submitted that the law with regard to amendment is liberal vis   -vis the amendment of written statement as defendant can take all sort of pleas, may be self contradictory to defeat the claim of the plaintiff. It is submitted by him that he had applied for taking disputed and specimen thumb impression of the petitioner from the record before the issues were framed and the trial could have commenced. After the permission was granted, the expert was appointed, who had submitted his report on 27.10.2011 and immediately thereafter, the application was filed for the purpose of amendment in the written statement. It is thus argued that there is no delay on his part and now with the report of the handwriting expert, it is prima facie proved that the thumb impression appended on the agreement to sell does not belong to him because it can not be proved having been smudged in ink. He has further submitted that the respondents can still be compensated with cost, if the application is allowed.