Gurdeep Singh v. Balbir Kaur & Ors.

Learned trial court dismissed the application vide the order dated 4.8.2011. I have heard Shri P.S.Dhaliwal, learned counsel for the petitioner and have gone through the record. The claim of the petitioner in the application is that the suit has been filed on fabricated documents including the alleged agreement of sale dated 3.2.1978. It is further claimed that the petitioner was bed-ridden on account of his suffering from paralytic attack on account of which he was unable even to talk properly to his counsel. He has then stated about his engaging a counsel, who prepared the written statement without proper consultation with him. The wife of the defendant expired due to illness on 6.12.2009 and on account of his own illness and death of his wife, the defendant was in a state of shock. The court is said to have closed the evidence of the defendant vide order dated 19.1.2010 against which he filed a revision petition before this court which was allowed.

One more opportunity was granted to him to lead his evidence. Thereafter, his counsel C.R.No.5624 of 2011 (O&M) -3- .... withdrew from the case because he was selected as Additional District Judge in the State of Madhya Pradesh and he engaged another counsel. After recovering to some extent, he appeared for cross-examination as was allowed by this court and when he was questioned about the execution of the agreement of sale and a receipt of balance sale consideration in instalments, he came to know about the case and so, he had prayed for substitution of paragraph 4 of the para-wise reply of the written statement by the proposed paragraph where he denies having executed the agreement, having received the balance sale consideration or having executed receipts for the same. Learned counsel for the petitioner has contended that the petitioner remained paralysed and he was not in a position to understand the claim of the plaintiff made against him and properly instruct his counsel to draft the written statement.

He has submitted that after recovering a bit from his illness, he came to know of the case and had applied for amendment of the written statement. He has submitted that Hon'ble Supreme Court of India in Baldev Singh & Ors. etc. Versus Manohar Singh & Anr.etc., 2006(3) Civil Court Cases 573 has laid down that the courts should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. It is not a case where an additional ground of defence is C.R.No.5624 of 2011 (O&M) -4- .... sought to be taken by the defendant. A defendant can always be permitted to amend the written statement for taking an additional defence. Here, the defendant is praying for withdrawing his admission of the agreement of sale. A perusal of paragraph 4 of the written statement which precedes the reply on merits, shows that the defendant had pleaded that the plaintiff had never been ready and willing to perform his part of the agreement.

It is further asserted that the plaintiff slept over the matter for a period of 27 years and as such, he can not claim the relief of specific performance as has been laid down by Hon'ble Apex Court and various Hon'ble High Courts. As against this plea, the defendant now wants to deny the very execution of the agreement of sale. Under the existing pleadings, the plaintiff has acquired a position which would be withdrawn from him if this amendment is allowed. This amendment, if allowed, would moreover cause serious injustice and irreparable loss to the plaintiff in which event as laid down in Baldev Singh's case (supra), amendment of the pleadings cannot be allowed. The whole case for allowing the amendment of the written statement is based on the plea of illness. Annexure P6, consisting of four pages, is put on the record to prove the medical condition of the defendant-petitioner. These documents nowhere show that the petitioner remained paralysed for any length of time.

So, the very C.R.No.5624 of 2011 (O&M) -5- .... basis of seeking amendment is wrong. In these circumstances, I find no illegality having been committed by learned trial court in dismissing the application for amendment. The revision petition is, consequently, dismissed. September 15,2011 “SCM” ( VIJENDER SINGH MALIK) JUDGE