Jagir Singh v. Surinder Mohan

Present: - Mr. Hardip Singh, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 20.8.2010 passed by the learned Additional Civil Judge (Senior Division), Rajpura, vide which the application moved by the petitioner for amendment of the written statement, stands declined. The plaintiff/respondent filed a suit for specific performance of the agreement to sell dated 21.5.2002. The defendant/petitioner in the written statement took the defence, that no agreement was executed, and that the agreement was forged and fabricated document. When the witnesses were being examined by the plaintiff/respondent, the petitioner put certain suggestions in cross- examination regarding business of the plaintiff/respondent, to be that of commission agent. Thereafter, in view of the suggestions put in the cross-examination, the defendant/petitioner moved an application under Civil Revision No.6044 of 2010 (O&M) -2- Order 6 Rule 17 of the Code of Civil Procedure to take additional plea in the written statement, that, in fact, there was transaction between the parties, as the plaintiff/respondent was a commission agent. The case now sought to be set up by amendment was, that in this transaction of the loan advanced by the plaintiff/respondent, certain blank papers were signed by the defendant/petitioner, which were converted into an agreement to sell. The petitioner wanted to take this plea, as the amendment was necessary, for the just and proper adjudication of the case. The application was contested by the plaintiff/respondent. The learned trial Court dismissed the application by recording a finding, that the defendant by way of amendment wanted to change his stand completely, to the prejudice of the plaintiff/respondent, who had already led evidence and dismissed the application. Though, the learned trial Court was not right in rejecting the application, on the ground that an alternative plea was raised, as it is well settled law, that in the written statement alternative plea is permissible to the defendant. However, there is no ground for interference with the order, as the amendment sought by the defendant/petitioner was after commencement of trial i.e when the plaintiff/respondent had already led evidence. In view of the judgment of the Hon'ble Supreme Court in Vidyabai and others Vs. Padmalatha and another, 2009(1) RCR (Civil) 763, the learned trial Court had no jurisdiction to allow the amendment of the pleadings after the commencement of trial, with Civil Revision No.6044 of 2010 (O&M) -3- respect to the facts which were within the knowledge of the defendant/petitioner or could be known by due diligence. Learned counsel for the petitioner challenged the impugned order by placing reliance on the judgment of the Hon'ble Supreme Court in Sushil Kumar Jain, Vs. Manoj Kumar and another, 2010(1) Civil Court Cases 0446, wherein the Hon'ble Supreme Court was pleased to lay down that the amendment of the plaint and written statement is not governed by the same principles, as adding of new grounds of defence or substituting or altering the defence does not lead to same problem, as adding, altering, substituting a new cause of action. The Hon'ble Supreme Court was further pleased to lay down, that the Courts are more liberal in allowing the amendment of written statement than that of a plaint. The contention of the learned counsel for the petitioner was that the learned trial Court was not justified in rejecting the application for amendment as the ground to be pleaded was in addition to the grounds already taken. The alternative plea was available to the petitioner which could be raised by amending the written statement. On the basis of the judgment of the Hon'ble Supreme Court in Sushil Kumar Jain, Vs. Manoj Kumar and another (supra), the learned counsel for the petitioner also contended that the commencement of trial as mentioned in the proviso was required to be understood in the limited sense, to hold that commencement of trial is at the stage of final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In the case before the Hon'ble Supreme Court, it was held as Civil Revision No.6044 of 2010 (O&M) -4- under: - “16. In view of the aforesaid decision and in view of the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced, we are of the view that the proviso to Order 6 Rule 17 of the CPC has no manner of application as the trial has not yet commenced.” It was in view of the positive finding that the trial had not commenced, the Hon'ble Supreme Court took a view, that the amendment of written statement, should have been allowed. It is settled law by the Hon'ble Supreme Court, that framing of issues is the commencement of trial. In the case in hand not only that issues were framed, the plaintiff/respondent also concluded his evidence. The trial, therefore, had commenced. The proviso to Order 6 Rule 17 of the Code of Civil Procedure was fully applicable to the facts and circumstances of the present case. No amendment qua the facts, which were within the knowledge of the petitioner, or could be known with due diligence, could be allowed. Learned counsel for the petitioner also relied on the judgment of this Court in Sagar Singh Slathia Vs. Surinder Pal Singh, 2009(3) RCR (Civil) 37 to contend, that in a suit for specific performance of agreement to sell, defendant took the plea that he was willing to execute the sale deed if the plaintiff deposited the money within the time. Subsequently, the defendant sought amendment of the written statement, wherein a new case was projected, that the property had been mistakenly described while what was contemplated to be sold was different property. The defendant also took a plea that he was not the exclusive Civil Revision No.6044 of 2010 (O&M) -5- owner of the property, as there were other persons who owned the land. Learned counsel for the petitioner contends, that as the defendant in the said case was allowed to withdraw his admission, the petitioner herein should have been allowed to amend the pleadings. This contention is again misconceived. The question is not as to whether the petitioner could take this plea or not, the question is whether after the commencement of the trial could, the amendment of the pleadings could be allowed to plead, the facts which were within the knowledge of the petitioner or could have been known with due diligence. The Hon'ble Supreme Court in Vidyabai and others Vs. Padmalatha and another, 2009(1) RCR (Civil) 763 has laid down that after the commencement of the trial , the Court does not have any jurisdiction to allow amendment of pleadings. No merit. Dismissed. September 20, 2010 R.S. (Vinod K. Sharma) Judge