CR No.708 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.708 of 2009
Date of decision: 10.2.2009
PSEB ......Petitioner
Versus
Jagmohan Kaur d/o
Late Sh. Ranjit Singh ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: None.
* * *
Rakesh Kumar Garg, J.
This is defendant’s revision petition challenging the order
dated 8.10.2008 passed by the Additional Civil Judge, (Jr. Division) Patiala,
whereby application for amendment in the written statement filed by the
defendant-petitioner has been dismissed.
As per the averments made in this petition, father of the
respondent retired on attaining the age of superannuation on 30.9.1994
from the service of the petitioner-Board. However, disciplinary proceedings
were pending against him at that time. He died on 24.11.2001.
Respondent filed a suit for declaration that she being the legal heir of Ranjit
Singh is entitled to receive the pensionary benefits and arrears with interest
and that she is also entitled to full family pension. The written statement
was filed on behalf of the defendant to the effect that a charge-sheet dated
19.8.1994 issued against the petitioner for the shortage of material for
which the inquiry was conducted as per rules and Ranjit Singh was found
guilty of the allegations mentioned in the charge-sheet. After giving him an
opportunity of hearing, it was ordered that Ranjit Singh was liable for a
sum of Rs.3,37,642/- vide office order No.107 dated 20.2.1999 and an
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amount of Rs.1,73,214/- was recovered from him while the remaining sum
of Rs.1,64,428/- is still outstanding.
It has been further averred that there was another charge-
sheet i.e. Charge-sheet No.1063 dated 12.8.1998 issued against Ranjit
Singh which could not be mentioned inadvertently in the written statement.
In that charge-sheet, Ranjit Singh was held guilty and the Chief Engineer
(South) vide punishment order dated 20.8.1999 ordered a recovery of
Rs.2,05,153/-. The petitioner-Board moved an application for amendment
in the written statement for adding the aforesaid fact of charge-sheet
No.1063 dated 12.8.1998 and the order of recovery dated 20.8.1999. Vide
impugned order, the aforesaid application of the Board has been rejected.
Challenging the aforesaid order dated 8.10.2008, the learned
counsel for the petitioner has vehemently argued that amendment sought
was necessary for settlement of the controversy in the suit. The
respondent was claiming pensionary benefits of her deceased father
whereas the disciplinary proceedings were decided after the retirement of
Ranjit Singh and the order of recovery was made on 20.8.1999. As such,
these facts are very much relevant for the decision of the case and the
proposed amendment will not change the nature of the defence.
I have heard learned counsel for the petitioner. However, I find
no merit in this revision petition.
Admittedly, the suit was instituted on 13.1.2006. Written
statement was filed by the petitioner on 30.3.2006. The evidence of the
plaintiff was concluded on 30.11.2006 and thereafter, since 20.12.2006, the
case is going on for defendant’s evidence. It may also be mentioned here
that on merits, this application has been contested by the plaintiff-
respondent denying that orders dated 20.2.1999 and 20.8.1999 for
recovery of Rs.3,37,642/- and Rs.2,05,153/- respectively were passed
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against the deceased. It was further stated that Ranjit Singh retired from
the service of defendant on superannuation on 30.9.1994 and as such no
disciplinary proceedings could be initiated against him. It is also the case
of the plaintiff-respondent that after considering the case of Ranjit Singh for
release of pensionary benefits, the defendant-Board has sanctioned the
same in favour of the plaintiff though released partial benefit and as such,
defendant-Board has no right to seek amendment at this stage.
On consideration of facts of the present application, I find that
the defendant-Board has failed to disclose as to how the amendment
sought is necessary for the settlement of the controversy in the suit.
Moreover, the order sought to be added by way of amendment is much
earlier to the filing of the written statement by the defendant-Board. Even
the order is alleged to have been passed by the authorities of the
defendant-Board. The defendant-Board has not pleaded in the application
for amendment that the said order was not in its knowledge or could not be
found by exercise of due diligence at the time of filing of the written
statement. No reason has been given as to why the said order was not
pleaded at the time of filing of the written statement. The written statement
cannot be allowed to be amended to incorporate the fact which was within
the knowledge of a party when the suit was filed or in any case when
written statement was filed or could be found with due diligence after the
commencement of the trial. In this regard, reliance can be placed on the
observations of this Court in Bahadur Singh and others v. Avtar Singh
2007(3) Civil Court Cases 417. It may also be noticed that in the present
case, evidence of the plaintiff has already been concluded and the case is
fixed for evidence of the defendant-Board since 8.1.2007. No witness was
examined by the defendant-Board. Thus, the trial has already commenced
in the suit. This Court in Bahadur Singh’s case (supra) has held that
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amendment cannot be allowed after commencement of the trial.
For the reasons recorded above, I find no merit in this petition.
Dismissed.
February 10, 2009 (RAKESH KUMAR GARG) ps JUDGE