Attar Chand v. Madan Lal
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH Civil Revision No.5317 of 2017 (O&M) Date of Decision:11.08.2017 Attar Chand
...Petitioner
Versus
Madan Lal
...Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:
Mr. Avnish Mittal, Advocate for the petitioner.
ANIL KSHETARPAL, J.
Petitioner has filed the revision petition against order passed by the learned Additional District Judge dismissing application filed by the petitioner-defendant for amendment of the written statement during the pendency of the appeal. The learned Additional District Judge while dismissing the application for amendment has observed as under: "5.
There is no dispute that the law regarding amendment of written statement is liberal. However, at the same time, the amendment sought should not be likely to prejudice the cause of other party especially, when the amendment is being sought at highly belated stage. The suit for permanent injunction of respondent-plaintiff was pending on the date of filing of written statement by the applicant-defendant. Had the said plea being taken at that stage, when pleadings was quite crystal clear for both of the parties, the respondentplaintiff had all opportunities to amend his plaint in suit for permanent injunction. Now all those stages are already over. The suit for permanent injunction filed by the respondent-plaintiff was decided on 08.05.2012 i.e. prior to
decision of the present suit. Still, the applicant-defendant did not raise the said plea before the trial court. Now during the pendency of appeal, the said plea is being sought to be raised to non-suit of the plaintiff on technical ground. In the considered opinion of the Court, such kind of amendment which has already crystallized some right in favour of other party cannot be allowed. It is settled proposition of law that the plea which was available to a party from very beginning and was in the knowledge of the defendant earlier, the amendment sought at a belated stage cannot be said to be bonafide. Such amendment is not permissible in law. Reference may be made to Judgments in case of Nachattar Singh Vs. Malkiat Singh, 2017(3) CCC 124 (P&H) and Dalip Masih Vs. Prem Jit Kaur, 2012(2) CCC 266 (P&H)."
Learned counsel for the petitioner has submitted that the petitioner had prayed for amendment of the written statement so as to take up legal plea. He has further submitted that law with regard to amendment of the written statement is liberal and therefore, the application should have been allowed.
I have considered the submission made by the learned counsel.
The petitioner-defendant is seeking to add the plea of bar to the maintainability of suit under Order 2 Rule 2 of CPC. Petitionerdefendant has already taken a defence that the suit is not maintainable. The case is at first appeal stage. The suit filed by the plaintiff for preemption on the ground of tenancy was decreed by the Court on 05.05.2014. The application for amendment was filed in December, 2014. I have seen the plaint. Filing of the previous suit has been disclosed in para 7 of the plaint. Earlier suit was only for permanent injunction. The cause of action for filing a suit for permanent injunction
is entirely different than from cause of action for filing the suit for preemption. The parties with their open eyes led evidence and allowed the case to be decided by the trial Court. Now at this stage when first appeal is pending, application for amendment has been moved. It is not in dispute that the defendant was in knowledge of earlier suit as the defendant was party to the aforesaid litigation. Apart from this, plaintiff had disclosed in his plaint about the filing of earlier suit. Taking into consideration, the aforesaid facts I do not find any good ground to interfere with the order passed by the learned Additional District Judge dismissing the application under Order 6 Rule 17 of CPC.
The revision petition is dismissed.
(ANIL KSHETARPAL) 11.08.2017 JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No