SUKHDEV SINGH Vs. CHAJJU

JUDGEMENT

(1.) THIS revision-petition arises out of the order dated April 20, 1991, of the Addl. District Judge, Kurukshetra, declining !he application of the petitioners for amendment of the written statement.

(2.) PLAINTIFFS brought a suit for declaration that by afflux of time they have become owners as the land was not got redeemed by mortgagors. It was further claimed that the mortgagor-defendants illegally and forcibly dispossessed the mortgagee's plaintiffs without redemption Plaintiffs suit was decreed. In the course of arguments in appeal, the petitioners applied for amendment of their written statement to the effect that they be permitted to raise the preliminary objections as under:- Un-amended plaint Proposed amendment. That the suit is also That the suit is also bad bad for non-joinder of for non-joinder of necessary parties i. e. all necessary parties i. e. the heirs of S. Dayal Singh all the heirs of S. Dayal Singh and Dasoudhi subsequent mortgagees. 8. That para No. 8 of the That para No. 8 of the plaint as given plaint as given is wrong is wrong and denied. Neither the land and denied. Neither the was under mortgage nor was there any land was under mortgage nor question of redemption. The defendants was there any question of its are in possession of the land as redemption. The defendants owners without any mortgage charge over are in possession of the land it. That in case it was mortgaged then as owners without any it was redeemed on 12. 5. 69 when entire mortgage charge over it. amount of Rs. 8000/- was paid by Dasondhi to Sadhu which included the amount of Rs. 33/5, Ana, 9 Pai and further payment of Rs. 16,000/- by the defendants to Dasondhi and got possession from him who had taken from Sadhu earlier. The petitioners were directed by the appellate court to apply for additional evidence, if necessary, before the start of the arguments. The documents were filed in the court by the plaintiff-respondents, on the request of the defendant-appellant.

(3.) THE learned court below declined the application for amendment inter-alia holding that the defendants earlier took the plea of land in dispute being never mortgaged and by proposed amendment, propose to take the plea that the land was in fact mortgaged and was redeemed on 12. 5. 1969 when the amount of Rs. 8000/- was paid by Dasondhi to Sadhu which included the amount of Rs. 33/5 Ana 9 Pai and a further payment of Rs. 16000/- by the defendants to Dasondhi and got possession from him who had taken from Sadhu earlier. Thus it would amount to withdrawal of earlier stand. The defendants have not come to the courts with clean hands- It was found, the defendants were well aware of the facts proposed to be put in by way of amendment in the written statement. The court further found, it was in rebuttal evidence that the plaintiffs produced mortgage deed Ex. PD, on the back of which receipt of redemption dated 12. 05. 1960 is recorded. The trial court decreed the suit on 19. 12. 1987. Similarly, documents Ex. PX, PA, PX, PC and PD were produced on 27. 11. l987 from which the defendants claim the amendment of the written statement, 3