IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.753 of 2008 Date of decision: 4.4.2011 Mohan Lal & anr. …. Petitioners Versus Sant Ram & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioners: Mr.K.S.Kanwar, Advocate. For the respondents: Mr.Rupinder Singh, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition under Article 227 of the Constitution of India is directed against the order dated 15.11.2008 whereby the learned Trial Court permitted the defendants to place on record some additional documents. 2. Normally in proceedings under Article 227 of the Constitution of India, one would not interfere in the order of a learned Trial Court which has been 2 passed in exercise of its jurisdiction and definitely the learned Trial Court had jurisdiction to allow such an application. However, there are peculiar facts of this case which show that the learned Trial Court has in fact passed a perverse order which is contrary to her earlier orders and, therefore, interference under Article 227 is called. 3. The undisputed facts of the case are that the plaintiffs filed a suit for declaration and injunction before the learned Trial Court. It was claimed in the suit that the suit land is jointly owned by the parties. In the written statement initially filed, the plea taken was that the suit land had been portioned between the parties by way of a family settlement. Later the defendants filed an application under Order 6 Rule 17, CPC to amend the written statement and requested that they may be permitted to take up the plea that in fact, it had wrongly been pleaded that the land had been partitioned by a family settlement but in fact, the partition had been ordered in a litigation between the parties by a competent authority. This application for amendment was dis- allowed by the same learned Civil Judge on 7.8.2008. 3 4. The plaintiffs filed Civil Revision No.161 of 2008 which was withdrawn with liberty reserved to the defendants-petitioners to raise the point regarding rejection of his amendment application before the learned Appellate Court in case the main suit is decided against the petitioners. This order was passed on 11.9.2008. Thereafter, on 25.9.2008, the defendants-respondents filed an application under Section 151, CPC for leading additional evidence and placing on record and proving the additional documents which are in the nature of the order of partition passed by the Assistant Collection. This application was allowed by the learned Trial Court. Hence the present petition. 5. I have heard Sh.Karan Singh Kanwar, learned counsel for the petitioners and Sh.Rupinder Singh, learned counsel for the respondents. 6. At this stage, I am not deciding the question whether the application for amendment was rightly rejected by the learned Trial Court nor not. That issue is still open but as earlier observed by this Court, the issue regarding the correctness of the order passed on the amendment application can only be the subject 4 matter of the appeal, if any, filed by the defendants in case the main suit is decided against them. At this stage, the order stands. 7. The question that arises is whether when the amendment has been rejected and the defendants- respondents have not been permitted to raise the plea that partition had been ordered in judicial proceedings, can they be permitted to place these documents on record by way of leading additional evidence? In my view, the answer has to be in the negative. No party can lead evidence which is contrary to the pleadings. As per the pleadings as they stand today, a family partition had taken place. Therefore, the defendants could not have been permitted to place on record these documents. 8. Therefore, the petition is allowed and the order of the learned Trial Court is set aside. It is made clear that in case the main suit is decided against the defendants and they file an appeal, they can re- agitate the question of amendment of their pleadings and if the learned Appellate Court feels that the amendment should have been allowed then the 5 present application for leading additional evidence can also be considered. 9. The petition is disposed in the aforesaid terms. No order as to costs. April 4, 2011 ( Deepak Gupta ) (m) Judge