C.R. No. 3372 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 3372 of 2011 Date of Decision: 19.9.2011 Swinder Singh ....Petitioner. Versus Barinder Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. B.S. Saini, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. Challenge in this revision petition filed under Article 227 of the Constitution of India is to the order dated 29.3.2011 (Annexure P-3) whereby the application of the defendant No.2-petitioner for amendment of written statement was declined by the trial court. 2. Briefly stated, the facts necessary for adjudication of the present petition are that respondents No.1 to 3 filed a suit for specific performance of the agreement to sell dated 24.12.2008 for the land measuring 12 kanals alleged to have been executed by Sukhdev Singh- respondent No.4 in their favour. During the pendency of the said suit, the petitioner was impleaded as a defendant and filed a written statement claiming that Sukhdev Singh had agreed prior in time to sell the disputed land vide agreement to sell dated 18.2.2008. On the basis of the said agreement, the sale deed was to be executed on or before C.R. No. 3372 of 2011 -2- 30.4.2009. The petitioner filed a suit for permanent injunction before 30.4.2009 restraining Sukhdev Singh not to sell the suit land to anybody else and the trial court granted injunction in favour of the petitioner. Sukhdev Singh executed a sale deed in pursuance of the agreement dated 18.2.2008 in favour of the petitioner on 11.5.2009 which was registered on 20.5.2009. As the agreement executed by Sukhdev Singh in favour of the petitioner was prior in time to the alleged agreement of respondents No.1 to 3, the petitioner prayed for dismissal of the suit for specific performance of the agreement to sell dated 24.12.2008. Thereafter, the petitioner moved an application for amendment of the written statement on the ground that the facts regarding the extension of time for the execution of the sale deed upto 4.5.2009 was not incorporated in the written statement as the endorsement to this effect was on the back of the agreement which was overlooked by the counsel for the petitioner while drafting the written statement. However, a photo copy of the agreement in question was placed on the file along with the written statement. The trial court vide order dated 29.3.2011 dismissed the said application. Hence, the present revision petition. 3. I have heard learned counsel for the petitioner. 4. The trial court while declining the application for amendment of the written statement filed by the defendant-petitioner came to the conclusion that the defendant No.2 was impleaded by way of amendment as during the pendency of the suit, defendant No.1 had sold the property to defendant No.2. Further, the plaintiff had already concluded his evidence and several opportunities had been availed by C.R. No. 3372 of 2011 -3- defendant No.2 for leading his evidence. Defendant No.2 had failed to exercise due diligence as the agreement to sell on which reliance had been placed by him was already on record. The relevant observations recorded by the trial court are as under:- “6. From the careful perusal of judicial file reveals that earlier respondent/plaintiff has filed a suit for specific performance against Sukhdev Singh, who has been proceeded against exparte in this case and the present applicant/defendant No.2 has been impleaded as defendant no.2 by way of amendment of plaint as during the pendency of the suit, defendant no.1 sold the property in question in favour of defendant no.2. Defendant no.2 while appearing in the court filed detailed written statement and relied upon an agreement to sell dated 18.2.2008, which is also placed on file. I have carefully gone through Order 6 Rule 17 CPC amendment of pleadings as inserted as per amendment of 2002. As per Order 6 Rule 17 “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. There is proviso that no application for amendment shall be allowed after the trial has commenced, C.R. No. 3372 of 2011 -4- 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. 7. Coming to facts of the present case in hand, it is admitted fact that the plaintiff has already concluded his evidence and opportunities have also been availed by defendant no.2 before filing this application and the agreement to sell upon which defendant no.2 is relied upon is also on file being filed on behalf of defendant no.2 along with the written statement and there is no due diligence which has been shown by applicant/defendant no.2. Moreover, present applicant/defendant no.2 was well aware of the present fact regarding which he is seeking amendment from the Court at the time of filing the written statement and at this stage, the application is without any merits and the same stands declined.” 5. In view of the above, the application for amendment, thus, could not be held to be bonafide and was with intent to delay the proceedings. Moreover, no illegality or perversity could be pointed out in the aforesaid order dated 29.3.2011 which may warrant interference by this Court. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. September 19, 2011 (AJAY KUMAR MITTAL) gbs JUDGE