Civil Revision No.6078 of 2010(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.6078 of 2010(O&M) Decided on : May 06, 2011 Kashmiri Lal & others ... Petitioners VERSUS Raj Kumar and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Gurinder Pal Singh, Advocate for the petitioner. Ms.H.S.Bedi, Advocate for respondents No.1 and 2. A.N.JINDAL, J.- This petition assails the order dated 28.4.2010 (Annexure P-6) passed by the Civil Judge (Jr.Divn.), Jalalabad, declining the application for amendment of the written statement filed by the petitioners (defendants No.1 to 3 before the Trial Court). Factual background of the case is that Harbhagwan Dass – respondent No.4 has filed a suit for permanent injunction restraining the defendants from disposing off the land measuring 12 Marlas, as fully detailed in the heading of the plaint, wherein, the petitioners were arrayed as defendants No.1 to 3. Defendants No.5 and 6 are practicing advocates and are related to the petitioners. Respondent No.2 Janak Raj – defendant No.6 (herein referred as respondent No.2) is the brother-in-law of Kashmiri Lal Civil Revision No.6078 of 2010(O&M) [ 2 ] Gumber, who is again brother-in-law of Kashmiri Lal Bajaj (petitioner No.1), so the petitioner No.1 used to repose confidence in said Janak Raj. As such, Janak Raj approached the petitioners that respondent Harbhagwan Dass has filed a suit against them as well as Janak Raj himself and Raj Kumar (respondent No.1 and 2). However, he assured them that they need not to worry as they (Raj Kumar and Janak Raj) would defend them and also got signatures of the petitioners on power of attorney and some blank papers. Thereafter, the petitioners came to know that respondents No.1 and 2 filed the written statement suiting to them and detrimental to the interest of the petitioners. Consequently, the petitioners moved an application for amendment of the plaint, wherein, an admission was recorded to the effect that the petitioners had transferred 2 Kanals 2 Marlas of land in favour of defendants No.5 and 6 through registered sale-deed and had delivered the possession at the time of sale-deed and defendants No.5 and 6 were the owners and in exclusive possession of the said land. As such, the petitioners sought following amendments:- “(i) That in preliminary objection No.2 the words “the father of defendant No.1 and grand father of defendant No.2 and 3 namely Rulia Ram” are to be deleted and instead thereof the words “the defendants No.1 to 4 along with father of defendant No.2 and 3 namely Harbans Lal” are to be added. Further, the date “30.8.58” is to be corrected as 30.7.66. Further the words “and being the owner of property” till the end of this para are to be deleted and the words “as such the defendants No.1 to 4 are the absolute owners in possession of suit land” Civil Revision No.6078 of 2010(O&M) [ 3 ] are to be added. (ii) That preliminary objection No.3 to be deleted in its entirety. (iii) That in para No.3 (on merits) the words and being owner Sh.Rulia Ram till the end of this para are to be deleted.” Having heard the rival contentions, it would be pertinent to mention here that plaintiff – respondent No.4 had not challenged the application. However, defendants No.5 and 6 had opposed the application. The Trial Court while relying upon the judgment “Armando & another vs. Judge and others, 2009(4) Civil Court Cases, page 263 (Bombay) observed that the co-defendant has the right to challenge and oppose the amendment sought by another defendant. However, the petitioners have not challenged this aspect of the case, yet they urge that since defendants No.5 and 6 were the advocates and they having fiduciary relationship with them, obtained their signatures and got the admissions made. The petitioners have every right to protect their legal rights and deny the ownership of defendants No.5 and 6. Such admission, if obtained by defendants No.5 and 6 fraudulently, could be proved to be erroneous. The law with regard to amendment of the written statement is more liberal than that of the amendment of the plaint. The principal feature while allowing the amendment is that in case the amendment is allowed, the rights of the other parties be not adversely affected. The case is at a very initial stage and the defendants want to withdraw the alleged fraudulent admissions and to explain away as to under what circumstances such Civil Revision No.6078 of 2010(O&M) [ 4 ] admissions were made and the defendants would be at liberty to meet with the said amendments by way of leading evidence. The Apex Court in case Usha Balashaheb Swami & others vs. Kiran Appaso Swami and others, 2007(2) RCR(Civil) 830 laid down some parameters under which amendments should be allowed, which are reproduced as under:- “C. Civil Procedure Code, Order 6 Rule 17 – Amendment of pleadings – Law summed up :- (1) Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. (2) Amendment can be allowed even after trial has commenced if Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. (3) Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. AIR 1922 PC 249 relied. (4) Prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings – Even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even Civil Revision No.6078 of 2010(O&M) [ 5 ] after taking a definite stand in the written statement. (5) In the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. 2000(1) RCR(Rent) 10 : 2000 (1) RCR (Civil) 511 (SC) relied.” As far as the change of nature of the suit is concerned, it is the stand to be taken by the petitioners/defendants, which is being changed or altered, however, no relief is sought to be changed or any other counter-claim is being filed. It is only the defence being put up by the defendants, which would undergo the scrutiny of the court and subject to proof by way of evidence. This High Court also observed in case Bhawanjit Singh and others vs. Jaswinderjit Singh Bhuller and others, 2009(5) RCR (Civil) 100, as under:- “8. Having heard learned counsel for the parties, I find merit in the submissions made by learned Senior Counsel appearing for the petitioners. As far as question of withdrawal of admission already made in the written statement is concerned, there is a valid explanation available on record to justify the same. Once there is justification available even for withdrawal of the admission already made in the written statement, the amendment can very well be permitted. In the present case, all what respondents – plaintiffs can plead is that in the earlier written statement filed by the petitioner, he had admitted that each one of the party was owner of 1/4th share in Civil Revision No.6078 of 2010(O&M) [ 6 ] the property belonging to Smt.Tejwant Kaur, who died intestate. However, now the stand was sought to be changed and petitioners – defendants were claiming = share and the claim of the respondents – defendants was completely ousted. However, reasons for seeking such amendment for withdrawal of admission already made in the written is a registered Will executed by Smt.Tejwant Kaur, which was not in the knowledge of the petitioners – defendants as the same was revealed only during the course of evidence being led by the respondents – plaintiffs. Once, justification for withdrawal of the admission already made is available, there is no reason to deny even that.” In the case in hand, no fresh plea is being raised, but the petitioners want to undo the act as done by defendants No.5 and 6 allegedly by playing fraud upon the petitioners and such admissions can be permitted to be explained away. The Trial Court has not taken correct view of the matter by dismissing the application. Hence, the impugned order being perverse deserves to be reversed. Resultantly, the petition is allowed, the impugned order is set aside and the petitioners are permitted to place on record the amended written statement. May 06, 2011 ( A.N.JINDAL ) `gian' JUDGE