Civil Rev. 5654 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH
Civil Rev. 5654 of 2008
Date of decision: 11.8.2009
Surjit Kaur and others
Petitioner
vs
Dhanwant Singh and others
Respondent
Present Dr. Balram Gupta, Sr.Advocate with
Mr. Pankaj Sharma, Advocate.
Mr. Arvind Mittal, Advocate
Mr. As Saini, Advocate.
M.M.S.BEDI,J.
This order will dispose of the instant revision petition filed by
the defendant- petitioners against order dated 19.9.2008 passed by the
trial court dismissing the application under Order 6 Rule 17 CPC filed by
the defendants for amendment of the written statement claiming that the
defendant- petitioners had engaged a counsel, who had taken their
signatures on some blank papers for the purpose of preparation of written
statement and reply to the application. He did not draft the written
statement as per the defence of the defendant- petitioners and had not
read over the contents of the same before filing it in the court. It was only
on 17.4.2008 that the defendant- petitioners came to know about a foul
play, being played against them by their counsel in connivance with the
plaintiff, when the plaintiff started proclaiming that he will get decreed the
suit in his favour. It is claimed by the defendant- petitioners that after
engaging another counsel and inspecting the file, it was revealed that a
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wrong admission had been made in the written statement. Vide the
impugned order dated 19.9.2008 the application for amendment has been
declined.
Learned counsel for the plaintiff-respondent No.1 has
vehemently contended that the petitioners cannot be permitted to withdraw
the admission made in the written statement. In support of his contention,
he has relied upon Heera Lal vs Kalyan Mal & Ors 1998(1) Civil Court
Cases 1 (S.C.), wherein it was observed that by amendment, admission
cannot be allowed to be withdrawn if such withdrawal would amount to
totally displacing the case of plaintiff and which would cause him
irretrievable prejudice. He has also relied upon Smt. Vidya Wanti vs Gopi
Chand and others Vol CXXI-(1991-1) Punjab Law Reporter 546, to
contend that when the defendants have admitted the claim of the plaintiffs
in categorical
terms and have also made statements, which were duly signed by them,
they cannot be permitted to withdraw unless the same is shown to be
erroneously or patently wrong. He has further relied upon Gurdial Singh
and others vs Raj Kumar Aneja and others (2202) 2 Supreme Court
Cases 445, to contend that the application for amendment must set out
exactly what is proposed to be omitted from, or substituted in or altered or
added to the original pleadings, otherwise the court cannot exercise its
power and discretion of permitting amendment effectively.
I have heard learned counsel for the parties and gone through
the facts and circumstances of the case. The plaintiff- respondents had, in
this case, filed a suit for declaration to the effect that the plaintiff is
absolute owner and in possession of the suit property, on which a house
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has been constructed. Besides that he had sought a declaration to the
effect that the sale deed dated 20.7.1998 executed by defendant No.2 in
favour of defendant No.4 and sale deed dated 18.1.2005 executed by
defendant No.3 in favour of defendant No.5 are null and void being illegal
transactions as these were forged and fabricated. The plaintiff-respondents
have also sought a declaration pertaining to Will dated 26.1.1981, alleged
to have been executed by defendant No.1 in favour of defendants 6,7 and
8. There also appears to be a dispute regarding another Will dated
14.9.1990 as per the pleading of the plaintiff-respondents. The plaintiff had
also sought a decree for mandatory injunction directing defendants 3 and 5
for removing the construction made on a particular portion of the suit
property. By way of amendment, no doubt the defendant- petitioners want
to withdraw some admissions regarding the registered documents. The
provisions of Order 6 Rule 17 CPC, read as follows:-
“17. Amendment of pleadings- The Court may at any stage
of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary
for the purpose of determining the real questions in
controversy between the parties:
Provided that no application for amendment shall 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 trial.”
The claim of the plaintiff-respondents is that on the basis of
admissions made in the written statement, a right has accrued to them to
get a decree in their favour but on the other hand a perusal of the
application, moved under Order 6 Rule 17 CPC indicates that the
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defendant- petitioners claims that a fraud has been played upon them. In
case the said fraud has been detected at the very initial stage of the trial,
the defendants cannot be deprived of an opportunity to contest the case on
merits. Learned counsel for plaintiff- respondents has contended that there
has been a compromise between the plaintiff and defendants and on the
basis of that compromise, the admission had been made by the
defendants. I have also taken into consideration the said contention but in
view of the stage of the suit i.e where the pleadings are being completed
and issues have not even been framed, it seems that it is necessary for the
purpose of determining the real question of controversy between the
parties, by permitting the defendants to amend the written statement. The
trial does not seem to have commenced as yet. The rules are hand maiden
of justice. In case the defendants, by way of amendment, at initial stage,
seek to withdraw an admission by explaining the circumstances as to how
the admissions were made in the pleadings, I do not find any reason not to
permit the amendment of the written statement. The inconvenience caused
to the plaintiff- petitioners can be compensated by costs.
In view of the above circumstances, the revision petition is
allowed, impugned order dated 19.9.2008 is hereby set aside, the
application of the defendants for amendment is allowed and they are
permitted to amend the written statement subject to payment of
Rs.20,000/- as costs, to be paid to the plaintiff on the next date of hearing
before the trial court at the time of filing the amended written statement.
August 11 ,2009 ( M.M.S.BEDI ) TSM JUDGE Civil Rev. 5654 of 2008 5