Munshi Ram v. Rakesh & ORS
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The present revision petition, preferred under Article 227 of the Constitution of India, assails the order dated 26.07.2013 (Annexure P-6), passed by the Court of Civil Judge (Junior Division), Nuh vide which the application filed by respondent-defendant No.3 Naval Singh for amendment of written statement was allowed.
2.
The petitioner-plaintiff filed a suit for possession with consequential relief of permanent injunction. The petitioner-plaintiff and respondents-defendants No.4 to 6 are real brothers and oral family settlement was pleaded amongst the brothers. The case set up was that the land comprised in Khasra No.28 had fallen to the share of the petitionerplaintiff and the land comprised in Khasra No.86 had fallen to the share of respondents-defendants No.4 to 6. The land comprised in Khasra No.28 measured 17 marlas (hereinafter referred to as 'the disputed land'). It was alleged that the respondents-defendants No.1 to 3 were threatening to take
-2forcible possession of the disputed land. During the pendency of a previously instituted suit by the son of the petitioner-plaintiff, the respondents-defendants No.1 to 3 had taken forcible possession of the disputed land and had illegally started raising construction. Accordingly, the suit for possession and permanent injunction was filed. 2(i) The suit was resisted by the respondents-defendants No.1 and 2. Though respondents-defendants No.1 and 2 filed a joint written statement (Annexure P-2) and respondent-defendant No.3 filed his own separate written statement (Annexure P-3), the stand taken in both the written statements was the same. The previous suit filed by Kishan Singh son of the petitioner-plaintiff was pleaded in both the written statements stating that in view of the same, the present suit was not maintainable.
It was averred that the respondents-defendants No.1 to 3 were in possession of the disputed land for the last more than 80 years. Certain preliminary objections with regard to cause of action, locus standi, the suit being barred by limitation etc. were raised. On merits, the family settlement etc. was denied and it was reiterated that the respondents-defendants No.1 and 2 were in actual physical and continuous possession of the disputed land for the last more than 80 years and had, therefore, become owners of the disputed land by way of adverse possession. In the written statement filed by respondent-defendant No.3, a counter claim was set up. A decree of declaration was sought to the effect that the respondent-defendant No.3 had become the owner of the disputed land by way of adverse possession.
A decree of permanent injunction restraining the petitioner-plaintiff from dispossessing the respondentdefendant No.3 from the disputed land was also sought.
-32(ii) Issues were framed. Trial commenced. Evidence of the petitioner-plaintiff concluded. At the stage of evidence of the respondentsdefendants, an application under Order 6 Rule 17 CPC (Annexure P-4) was moved by the respondent-defendant No.3 for amendment of the written statement. A stand was taken that the petitioner-plaintiff and brothers of respondent-defendant No.3 were co-sharers alongwith the respondentdefendant No.3 in Khasra No.37 and that the parties to the suit were successors of common ancestors Ghasi. It was averred that respondentdefendant No.3 had raised his residential house in Khasra No.37. It was also pleaded that adjacent to Khasra No.37 was Khasra No.86 which was under the ownership of the petitioner-plaintiff and his brothers.
It was also averred that the facts pleaded in the written statement had come to the notice of the respondent-defendant No.3 when he engaged another counsel, who disclosed the contents of the written statement while preparing for the evidence. Accordingly, certain amendments, as set out in the application were sought to be introduced in the written statement. The said application was opposed by way of a reply (Annexure P-5), filed by the petitioner-plaintiff. 3.
By way of the impugned order dated 26.07.2013 (Annexure P6), the application was allowed leading to the filing of the present revision petition.
4.
I have heard learned counsel for the parties and have perused the paper book.
5.
Learned counsel for the petitioner-plaintiff submitted that the impugned order vide which the application for amendment in the written statement was allowed, is not sustainable. Learned counsel submitted that totally contrary stand to that taken in the original written statement was
-4sought to be taken in the amended written statement which would not be permissible. Learned counsel submitted that the respondent-defendant No.3 could not be permitted to take a diametrically opposite stand by way of an amendment and that too at a belated stage when the entire evidence of the petitioner-plaintiff had been concluded. Learned counsel referred to the provisions of Order 6 Rule 17 CPC and submitted that the amendment was introduced by the legislature with a specific purpose in mind and by allowing the application, the said purpose had been defeated. Learned counsel placed reliance upon the judgment of a Coordinate Bench of this Court in Palak and another versus Gurdeep Singh 2019 (3) R.C.R. (Civil) 358.
6.
On the other hand, learned counsel for the respondentdefendant No.3 submitted that there is no illegality or infirmity in the impugned order. It was submitted that the defendants could always take up inconsistent pleas in the written statement and that the parameters for the amendment of a plaint were entirely different from that of a written statement. Reference was made to the original written statement and the application for amendment of the written statement and it was submitted that the allowing of the application would not cause any prejudice to the petitioner-plaintiff. In support of his contentions, learned counsel relied upon the judgment of Hon'ble Supreme Court of India in Usha Balashaheb Swami & Ors. Versus Kiran Appaso Swami & Ors. 2007 (2) R.C.R. (Civil) 830, Sushil Kumar Jain versus Manoj Kumar & Anr. 2009 (3) R.C.R. (Civil) 899 as well as the judgment of a Coordinate Bench of this Court in Sagar Singh Slathia versus Surinder Pal Singh 2009 (3) R.C.R. (Civil) 37.
-57.
I have considered the submissions made by learned counsel for the parties.
8.
Order 6 Rule 17 lays down as under:-
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A plain reading of the provision shows that the Court can allow amendment in pleadings at any stage of the proceedings. It also lays down that all such amendments which may be necessary for the purpose of determining the real question in controversy can be made. The proviso provides that no application for amendment would be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.
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12.
In so far as the law with regard to amendment of written statement is concerned, the same is well settled that the parameters for amendment of a plaint and that of a written statement are entirely different. In the case of Usha Balashaheb Swami & Ors. Versus Kiran Appaso Swami & Ors. (supra), the Hon'ble Apex Court laid down that an amendment in pleadings could be permitted at any stage of the proceedings if the Court was of the view that such amendments may be necessary for determining the real question in controversy between the parties. It was held that it is also well settled that the Court should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.
It was further held that in so far as the amendment of written statement is concerned, the principles for amendment of a plaint and that of a written statement stand on different footings. It was held that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable whereas adding, altering or substituting a new cause of action in the plaint may be objectionable. A similar view was taken by the Hon'ble Apex Court in the case of Sushil Kumar Jain versus Manoj Kumar & Anr.
-10- (supra). Reference was made by the Hon'ble Apex Court to the judgment in the case of Baldev Singh Versus Manohar Singh 2006 (3) RCR (Civil) 844. 13.
Reverting to the facts of the present case, the suit filed by the petitioner-plaintiff pertained to the possession of the petitioner-plaintiff over land comprised in Khasra No.28. The possession of this land was stated to have been taken over by the respondents-defendants No.1 to 3 and suit for possession was filed to regain possession of the disputed land. The original stand of the respondents-defendants was that they had become owners in possession of the disputed land by way of adverse possession and accordingly a counter claim was also set up by the respondent-defendant No.3 seeking a declaration in this regard. By way of the amendment, initially a totally different stand was taken stating that the respondentsdefendants/defendant No.3 and his brothers were co-sharers in land comprising Khasra No.37 which was adjacent to Khasra No.86. The plea of the adverse possession was withdrawn and so was the counter claim. Subsequently, in an affidavit filed by the respondent-defendant No.3, it was stated that the appellant-defendant No.3 had rights in land comprising Khasra No.28 also.
14.
No doubt, the respondent-defendant No.3 took a contradictory stand in the application for amendment of the written statement and accordingly in the amended written statement. However, it has to be borne in mind that the petitioner-plaintiff is concerned only with land comprising Khasra No.28. It was his positive case that possession of the same was taken over by the respondents-defendants. The petitioner-plaintiff would not be concerned with land comprising Khasra No.37. Accordingly, in the considered opinion of this Court, the amendment would not harm the interest
-11of the petitioner-plaintiff. In any case, the petitioner-plaintiff would have to prove his case by leading cogent evidence especially the issues in which the onus is upon him. Similarly, the respondents-defendants would have to prove their stand. The petitioner-plaintiff would get an opportunity to repel the stand taken by the respondents-defendants. As has been laid down by the Hon'ble Apex Court in the judgments referred to in the preceding paragraphs, the defendant can very well take inconsistent pleas in the written statement and the test is that the said amendments should not cause any prejudice to the plaintiff. In the considered opinion of this Court, no prejudice would be caused to the petitioner-plaintiff by way of the amendment sought to be introduced in the written statement. Infact, the pendency of this revision petition before this Court for the last 10 years has definitely caused prejudice to the petitioner-plaintiff. The suit itself might as well have concluded by this time. Infact, the entire litigation may have come to an end.
Be that as it may, for the reasons, aforementioned, this Court does not find any illegality in the impugned order. In view of the same, the present revision petition is found to be devoid of merit and is accordingly dismissed.
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