Jagmal Singh v. Mohan Singh

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr. R.S.Mamli, Advocate, for the petitioner. --- -- Rakesh Kumar Garg,J.(Oral) This is defendants' revision petition challenging the impugned order dated 12.3.2010 whereby his application for amendment in the written statement has been rejected. As per the averments made, plaintiff-respondent filed a suit for declaration to the effect that sale deed No.4389 dated 12.12.1995 executed by defendant No.2 Shakuntla (since deceased and represented by proforma respondents No. 2 to 8) in favour of the petitioner regarding the suit land was illegal and result of fraud and misrepresentation with a further prayer for permanent injunction restraining the petitioner from interfering in his possession and also restraining him from alienating the aforesaid property any further. In the aforesaid suit the plaintiff-respondent has further averred that the suit property was ancestral which was inherited by his father Jora Singh and the plaintiff along with his mother was the owner in C.R.No.2108 of 2010 2 possession of the property in question. Smt.Shakuntla defendant No.2 who is the widow of Shri Phool Singh was the owner in possession of property which exists towards Eastern side of the land of the plaintiff as fully shown in the rough site plan attached with the plaint. Shri Phool Singh had died leaving behind his legal heirs and defendant No.2 inherited only 1/5th share in the aforesaid property left by Shri Phool Singh. It has been further alleged in the plaint that petitioner had got executed a bogus sale deed dated 12.12.1995 regarding the suit land from Smt.Shakuntla defendant No.2 fraudulently and she could not legally alienate the land having no right, title or interest in the suit property. The aforesaid suit was contested by the petitioner by submitting in the written statement that defendant No.2 was absolute owner of the property in dispute and she has further right to alienate the same. However, it was admitted that Jora Singh was owner in possession of the property in dispute and defendant No.2 had alienated the suit land in his favour legally on the basis of the sale deed dated 12.12.1995. In the application for amendment of written statement, it is the case of the petitioner that while replying the plaint in para 1 of the written statement on merits, Jora Singh was written as owner in possession of the property inadvertently whereas Phool Singh was the owner in possession of the suit property and thus the aforesaid mistake which was typographical error was sought to be corrected by way of amendment of the written statement and the trial court vide impugned order has erred at law while rejecting the prayer of the petitioner. Learned counsel for the petitioner has argued that the Court can allow amendment in the pleadings at any stage of the proceedings if such C.R.No.2108 of 2010 3 amendment is necessary to settle the real controversy between the parties. Thus, the impugned order is liable to be set aside and prayer for amendment of the written statement be allowed. I have heard the learned counsel for the petitioner and perused the impugned order. Admittedly issues in this case were framed on 11.11.2003. Both the parties have already concluded their evidence and the present application for amendment has been moved by the defendant at the fag end of the case. Moreover, it is not the case of the petitioner that he could not sought the amendment despite due diligence or the mistake could not come to his notice. The only plea taken by the petitioner is that inadvertently and by typographical mistake it was mentioned in the written statement that Jora Singh was owner in possession of the property in question whereas Phool Singh was owner in possession thereof and Jora Singh was never owner in possession of the same. The plea raised by the petitioner cannot be accepted because the plaintiff has taken a specific stand in the plaint that his father Jora Singh was the owner in possession of the property in dispute and, therefore, while replying to the aforesaid averments it was imperative for the defendant-petitioner either to accept the aforesaid averment or deny the same. Even in the proposed amended written statement the petitioner wants to say that para 1 of the plaint is admitted to the extent that Phool Singh was the owner in possession of the suit property and defendant No.2 has alienated the suit land in favour of the petitioner legally. The proposed amendment reads as follows:- “1. That para no.1 of the plaint is admitted to the extent that Phool Singh was owner in possession of the property in C.R.No.2108 of 2010 4 dispute, and the defendant no.2 has alienated the suit land in favour of answering defendant legally as she was fully competent to alienate the same. The plaintiff has no right or title in the suit property. Allegations made in this para are false and frivolous. The site plan prepared by the plaintiff is quite erroneous and not in accordance with factual position at the spot. The answering defendant is owner in possession of the suit property”. The aforesaid averment which is proposed to be taken by the petitioner cannot be said to be in consonance with the averment made in para 1 of the plaint, which is as under:- “ That previously Shri Jora Singh father of the plaintiff was owner in possession of the property marked by letters ABCDEF as fully shown in the rough site plan attached in Red Colour and as fully detailed and described in para-B of the heading of the plaint.” Thus, the amendment sought by the petitioner is not bona fide and in fact, the petitioner seeks to withdraw the admission made by him which cannot be allowed to be withdrawn as the same would amount to totally displacing the case of the plaintiff-respondent at the fag end of the case, which is not permissible. No merit. Dismissed. March 30, 2010 ( Rakesh Kumar Garg) Judge