RESERVED
Case :- WRIT - C No. - 38661 of 2010 Petitioner :- Smt. Shashi Kiran Respondent :- Puran Chand And Others Counsel for Petitioner :- Anjani Kumar Mishra,Varchasva Bajpai Counsel for Respondent :- P.K.S. Paliwal
Hon'ble Suneet Kumar,J.
Heard Sri Ashutosh Mishra, learned counsel appearing for the petitioner, Sri P.K.S. Paliwal, learned counsel appearing for the contesting-respondents and perused the record.
The instant petition filed under Article 227 of the Constitution of India has been instituted against the order dated 7 June 2010 passed by the Appellate Court/District Judge, Azamgarh rejecting the amendment application filed by the petitioner seeking amendment of the written statement.
The suit bearing Original Suit No. 1306 of 2003 (Pooran Chand vs. Dharamdei & others) was instituted by the first respondent (plaintiff) for cancellation of sale-deed executed by the third respondent-Janardan (defendant in suit) on 20 June 1998 and registered on 13 February 2000 in favour of Dharamdei, predecessor in interest of the second respondent. The suit, inter alia, was filed on the assertion that third respondent being owner in possession of the suit property initially executed a registered sale-deed on 17 June 1997 in favour of Premlata Singh, who in turn transferred the property to the first respondent (plaintiff) on 15 February 2002. After the sale-deed was executed in 1997 in favour of Premlata Singh, Janardan (second respondent) had no right and title to execute the subsequent sale-deed in favour of Dharamdei in 1998. Consequently, it was alleged that the sale-deed dated 20 June 1998 is liable to be cancelled. Daramdei, thereafter, transferred the suit property to the petitioner on 5 June 2004. The defendant-third respondent filed written statement and contested the suit. Petitioner was impleaded as third defendant and contested the suit by filing written statement. The trial court decreed the suit vide judgment and decree dated 10 February 2010.
Aggrieved, petitioner preferred an appeal, bearing Appeal No. 38 of 2010; in the pending appeal, petitioner filed an application (Paper 24-Ka- 2) seeking amendment of the written statement. Appellate Court by the impugned order rejected the application, on the ground, that petitioner was a representative of the judgment-debtor, as such, could not raise any plea not taken by the judgment-debtor; further, no appeal has been preferred by the transferor of the petitioner against the judgment and decree of the trial court.
It is urged by the learned counsel for the petitioner that petitioner was impleaded in the suit as defendant in her independent right; it was open to her to take both factual and legal pleas; proposed amendment related to the history of the litigation regarding the suit property which, though, within the knowledge of the plaintiff was concealed by him and the petitioner was not aware of the facts, hence, was unable to incorporate the facts in the written statement filed by the petitioner; petitioner, though, a transferee from the first defendant, she cannot be termed as a representative of the judgment-debtor.
The application admittedly was filed belatedly by the petitioner seeking amendment of the written statement on the plea that petitioner due to ignorance and carelessness could not place certain facts before the trial court. Facts sought to be incorporated by the amendment pertains to the proceedings before the Consolidation Court under the provisions of the U.P. Consolidation of Holdings Act, 19531, inter alia, alleging that the suit was barred in view of Section 49 of the Act, 1953.
Learned counsel appearing for the contesting respondents submits that successor in interest, after substitution in the proceedings cannot take inconsistent pleading from that of their predecessor in interest. It is further 1 Act, 1953 submitted that the subsequent purchaser does not get a right to lead any evidence, as he merely steps into the shoes of the first defendant, who had given up the right to lead evidence and contest the suit diligently.
Rival submissions fall for consideration.
The Court may allow an amendment of the written statement at any stage of the proceeding and even on inconsistent or contradictory plea if no prejudice is caused to the other side. The whole object and purpose of introduction of Order VI, Rule 17 in the Code of Civil Procedure is to avoid multiplicity of proceeding and/or to shorten the litigation and to settle the entire dispute at rest, though, however, any amendment should not or must not jeopardize the case of the other side in such a manner which goes to non suit the other side. The term of this provision “at any stage of the proceedings” and “for the purpose of determining the real questions in controversy” are important.
Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. But each case depends upon its own facts. The essential requisites are that the delay in making the application, the reason therefore should be given and considered, and there should be no prejudice caused to the other side. (Refer: Arundhati Mishra v. Sri Ram Charitra 2.) So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filling such amendment applications. Supreme Court in numerous cases had held that the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case 2 (1994) 2 SCC 29 so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. (Refer: Pankaja v. Yellappa (Dead) by LRs. 3) In the facts of the present case, the amendment that is sought to be incorporated primarily pertains to the history of the litigation with regard to the land in dispute and a compromise entered into between the defendants before the Consolidation Officer which is said to have been acted upon. It is further urged that the suit was barred in view of Section 49 of the Act, 1953.
I have perused the written statements filed by the contesting defendants and in particular the written statement of predecessor in interest of the petitioner (Dharamdei). The plea that is sought to be raised by the amendment application has already been raised in the written statement and the trial court has dealt with it while deciding issue no. 1. The issue no. 3 pertaining to Section 49 of the Act, 1953, though framed, was not decided as the defendants upon whom the onus was to lead evidence, did not press the issue. Petitioner though had limited right being transferee, but both transferor and transferee/petitioner contested the suit by filing their respective written statements. It is not the case of the petitioner that the facts sought to be incorporated by way of amendment was not known to the petitioner, nor it is the case of the petitioner that the suit was collusive and the first defendant was not interested in contesting the suit.
In the circumstances, it cannot be said that petitioner was not aware of all the facts and the history of the litigation, further, the reason assigned by the petitioner in moving the application at a belated stage is due to 'ignorance' and 'carelessness' on the part of the petitioners in not placing the facts before the trial court.
Learned counsel for the petitioner in support of his submissions has placed reliance on the decisions rendered in Baldev Singh vs.
3 2004 (6) SCC 415 : AIR 2004 SC 4102 Manohar Singh 4; P. Saraswathi vs. C. Subramaniam 5; B.K. Narayanana Pillai vs. Parameshwaran Pillai 6; Rajesh Kumar Agarwal vs. K.K. Modi 7; to contend that the amendment in the written statement can be brought about at any stage.
There is no dispute to the legal preposition but in the facts and circumstances of the case in hand, it is evident and clear that the petitioners were fully aware of all the facts. The contesting defendants had raised the plea that is being sought to be incorporated in the written statement. Further, the defendants including the petitioner did not press issue no. 3, therefore, at this stage, it is not open for them to raise a plea which was not pressed and argued before the trial court. It is further not being disputed that the consolidation proceedings had since concluded upon notification issued under Section 52 on 17 September 1999, that is, much before the institution of the suit.
Learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error in the impugned order.
The petition being devoid of merit is, accordingly, dismissed. Interim order, if any, stands vacated. Trial court to proceed in accordance with law.
Registry is directed to communicate this order to the trial court. No cost.
Order Date :- 20.12.2018 Mukesh Kr.
4 2006 (6) SCC 498
5 AIR 2014 Madras 50
6 2000 (1) SCC 712
7 AIR (2006) SC 1647