C.R. No. 5543 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5543 of 2011 Date of Decision: 26.9.2011 Jagvinder Kaur alias Jagiro and others ....Petitioners. Versus Ved Parkash and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Sudeep Mahajan, Advocate for the petitioners. AJAY KUMAR MITTAL, J. 1. By way of instant petition filed under Article 227 of the Constitution of India, the defendant-petitioners have prayed for setting aside the impugned order dated 11.8.2011 passed by the Additional District Judge (Fast Track Court), Hisar whereby the application filed by them under Order 6 Rule 17 of the Code of Civil Procedure for amendment of written statement was dismissed. 2. Briefly stated, the facts necessary for adjudication of the present petition are that the plaintiff-respondents filed a suit for possession by way of specific performance of the agreement dated 24.11.2000 in respect of agricultural land measuring 96 kanals 18 marlas as described in the head note of the plaint on payment of balance sale consideration. The land in dispute was allotted to the defendants by the State Government and on payment, the proprietary C.R. No. 5543 of 2011 -2- rights were given to them. The defendants entered into an agreement to sell dated 24.11.2000 of the land in dispute with the plaintiffs at the rate of Rs.2,33,200/- per acre and Rs.3,00,000/- was received by them as earnest money. The sale deed was to be executed and registered by 30.4.2001 after receiving the balance sale consideration. It was pleaded that the defendants agreed to get the sale deed executed in their favour from the State Government and also to get the income tax clearance certificate from the Income Tax Department before the date of registration. Originally, defendant No.1 filed a written statement taking various preliminary objections. It was pleaded that the plaintiffs procured his signatures on the alleged agreement and he received only Rs.3 lacs. It was further pleaded that the defendant agreed to sell the land at the rate of Rs.3 lacs and not at the rate of Rs.2,33,200/-. On 28.7.2002, defendant No.1 died leaving behind his six legal heirs who were impleaded as defendants in place of defendant No.1 on 23.12.2002. On 1.5.2003, written statement was filed on behalf of defendant No.2. On 15.5.2003, counsel for the legal heirs of defendant No.1 made a statement that he did not want to file written statement on behalf of the legal heirs and the written statement filed by defendant No.1 be read as written statement on behalf of all the legal heirs of deceased-defendant No.1. Thereafter, an application was filed for permission to file written statement on behalf of defendants No.1(ii) and 1(iii). The trial court vide order dated 14.1.2008 dismissed the said application holding that the statement made by the counsel that he did not wish to file any written statement on behalf of the legal heirs of deceased Iqbal Singh was made on behalf of all the legal heirs of the C.R. No. 5543 of 2011 -3- deceased. The trial court vide judgment and decree dated 22.1.2008 partly decreed the suit of the plaintiffs and directed the defendants to execute and register the sale deed in respect of the suit land in favour of the plaintiffs at the rate of 2,33,200/- per acre after paying the balance sale consideration. Against the said judgment and decree dated 22.1.2008, the defendants filed an appeal before the appellate court by inter alia pleading that they were not permitted to file written statement in support of their case. During the pendency of the appeal, an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement was filed by the defendants. The appellate court vide order dated 11.8.2011 dismissed the said application. Hence, the present revision petition. 3. I have heard learned counsel for the petitioners and have perused the record. 4. Learned counsel for the petitioners submitted that the petitioners are the legal heirs of deceased Iqbal Singh and had a right to file separate written statement. He further submitted that the Apex Court in Sumtibai and others v. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) and others, 2007 (4) CCC 593 (SC) had held that when legal representatives were impleaded they were entitled to file additional written statement and to take all the pleas available to them. Learned counsel next submitted that the statement which was made by the counsel on 15.5.2003 to the effect that the legal representatives of the deceased Iqbal Singh did not want to file any separate written statement was the mistake of a counsel and no legal right of the petitioners could be taken away on that basis. Reliance was C.R. No. 5543 of 2011 -4- placed on the judgments of the Hon'ble Supreme Court in BSNL and others v. Subash Chandra Kanchan and another (2006) 8 SCC 279 and Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff and others, 2011(3) CCC 673 (SC). It was also submitted that the plea sought to be raised was that great hardship would be caused to the legal heirs of the deceased if specific performance of agreement to sell was ordered. It was also urged that in such a situation the Apex Court in Vimaleshwar Nagappa Shet's case (supra) has held that in urban areas where value of property had escalated very fast, the specific performance of agreement would not be equitable after a lapse of long period of time. 5. After giving my thoughtful consideration to the submission of the learned counsel for the petitioners, I do not find any merit in the same. The petitioners were impleaded in the trial court on 23.12.2002 as legal representatives of deceased Iqbal Singh. An application filed before the trial court on behalf of the legal representatives, namely, Azad Singh and Bhupinder Singh was dismissed by the trial court on 14.1.2008. The relevant observations recorded by the trial court in para 4 thereof are reproduced as under:- “4. Perusal of the case file shows that Shri C.S. Mehta, counsel appeared for defendant No.1 Iqbal Singh who filed the reply to injunction on 24.5.2002. However, this reply was filed under signature of only Iqbal Singh and even the same is not signed by counsel. So, the fact as stated in para No.4 of the application that defendant No.1 was never explained and read over contents of reply cannot be accepted. C.R. No. 5543 of 2011 -5- On 15.6.2002 the written statement was also filed on behalf of defendant No.1 under signature of defendant No.1 as well as his counsel. The verification of written statement shows that the contents of para Nos.1 to 12 of preliminary objections and para Nos. 1 to 12 of written statement on merits and para No.1 of additional objections are true and correct to the best knowledge of defendant-Iqbal Singh. So, the averments as stated in para No.4 of application that the written statement was never explained and read over to defendant No.1 cannot be accepted. Further Iqbal Singh died on 28.7.2002, application for impleading the LR was allowed on 23.12.2002. Shri C.S. Mehta for defendant No.1 (i), (iv), (v) and (vi) appeared on 27.1.2003. However on 23.1.2003 an application under Order 5 Rule 24 was moved by counsel for applicant/plaintiff, and in para No.2 of this application it has been mentioned that Azad alias Yadvinder @ Yada and Bhupinder are confined in jail. So their service was effected through jail and perusal of summons issued for 27.1.2003 shows the service of Azad alias Yadvinder alias Yada. So, these three names are of one person, who has filed the present application by mentioning him as Azad Singh only and he has not mentioned his rest of the names in application filed today, but C.R. No. 5543 of 2011 -6- this Azad Singh had put his signature by way of Yadvinder Singh. So, it is also not disputed that this person Azad Singh is called by the names of Yadvinder Singh and Yada also. No doubt a perusal of order dated 27.1.2003 shows that as defendant No.1(ii) and 1(iii) i.e. present applicants were in jail, so Shri Baljeet Singh Bishnoi put his appearance as counsel for the legal heirs and he remained continued appearing on 17.3.2003 also. But perusal of order dated 17.4.2003 clears the complete picture when Shri S.K. Gupta, Advocate appeared by filing his memo of appearance on behalf of all the defendants. The order as well as memo of appearance clears a fact that Shri S.K. Gupta appeared on behalf of LRs of defendant No.1. Otherwise Shri S.K. Gupta must have mentioned on memo of appearance that he has been appearing only on behalf of defendant No. 1(i) and (iv) to (vi) and not on behalf of defendant No.1 (ii) and (iii). At least an Advocate did not commit such type of mistake. So, the appearance of Shri S.K. Gupta on 17.4.2003 when he filed his memo of appearance clears the whole picture that he appeared on behalf of all LRs of defendant No.1, and only due to this reason Shri Baljeet Singh Bishnoi did not appear and on 15.5.2003 Shri S.K. Gupta made statement that C.R. No. 5543 of 2011 -7- he does not want to file any written statement on behalf of LRs of deceased defendant No.1 and written statement already filed on behalf of defendant No.1 Iqbal Singh be read on behalf of LRs of deceased defendant No.1 Iqbal Singh. So, by releasing such type of statement by Shri S.K. Gupta as recorded on 15.5.2003 estops not even both the applicants to file such type of frivolous application, but the Court also does not expect filing of such type of frivolous application even by a counsel. Not only this was done by applicants, rather they have mentioned in para No.17 that they have come to know about these facts on last date of hearing on 10.1.2008 and all the contents are supported by affidavit. A perusal of case file further shows that Shri S.K. Gupta counsel for defendant also filed his power of attorney on 13.12.2006 on behalf of Yadvinder Singh. And this Vakalatnama is part of the case file. So the Court also does not expect such type of irresponsible behaviour either by applicants or by counsel. Bhupinder Singh who filed present application also appeared on 16.1.2006 as DW1 who himself closed the evidence. After appearance of defendant No.2 and after allowing defendant No.2 to file written statement a de novo trial was conducted and then again this Bhupinder Singh appeared on C.R. No. 5543 of 2011 -8- 15.11.2007. So, this Bhupinder Singh, now applicant cannot take the plea that they should be given permission to file the written statement on behalf of defendants No.1 (ii) and 1(iii). The whole proceedings were conducted in presence of Bhupinder Singh when he appeared as defendant witness, not at one time but at two times. Both the applicants are bound by the statement released by Shri S.K. Gupta, Advocate on 15.5.2003 as Shri S.K. Gupta appeared on behalf of all LRs on 17.4.2003 and conducted the whole case on behalf of the defendants. The signature on present application as Yadvinder Singh put by Azad Singh are similar as mentioned in Ex.D1 (Mark X) and Ex.D6 proved by DW1 and DW2. The same signature is on power of attorney filed by Shri S.K. Gupta on 13.12.2006 as well as today. The applicant Azad Singh by mentioning his name only as Azad Singh has tried to mislead the Court today. Wheras he is known by three names i.e. Azad Singh, Yadwinder Singh and Yada which is clear by application dated 23.1.2003 filed under Order 5 Rule 24 report on summons issued for 27.1.2003 and his signatures on Ex.D1, Ex.D6, power of attorney filed on 13.12.2006 in favour of Shri S.K. Gupta as well as today. The case pertains to the year 2001 and is at the rebuttal stage C.R. No. 5543 of 2011 -9- and is one of the history sheet case and by filing of such type of frivolous application the applicants have tried to delay proceedings of the case. So, the present application is hereby dismissed with costs of Rs.4000/- to be deposited in the Legal Services Authority and the receipt be produced on 15.1.2008.” 6. The suit was decreed on 22.1.2008. The petitioners had filed an appeal before the appellate court on 22.2.2008 and the present application for amendment was filed in the year 2010. The trial court while dismissing the application of the petitioners recorded that similar application filed by Azad Singh and Bhupinder Singh had been dismissed by the trial court on 14.1.2008. The amendment sought to be incorporated was already within the knowledge of the applicants and the trial of the suit continued for about 7 years. Further, the application was not bonafide and was to delay the proceedings. The conclusion of the appellate court reads as under:- “Applicants No.3 & 4 filed an application for seeking permission to file written statement. Vide order dated 14.1.2008 that application was dismissed by learned Trial Court with special cost of Rs.4,000/- and now that order has become final because same is not set aside by Appellate Court. By way of proposed amendment applicants want to take plea of hardship, consideration is inadequate, suit property is ancestral and co-parcenary property and tenants are not impleaded as party in the suit. These all pleas were C.R. No. 5543 of 2011 -10- already within the knowledge of applicants when trial of the case took place before learned Trial Court for about 7 years. These are not such pleas in absence of which case cannot be decided effectively. The present application has been filed to delay the proceedings of the case. If the application in hand is allowed then trial will start de-novo and that will be only futile exercise because proposed amendments are not necessary for just decision of the case.” 7. On a query being put to the learned counsel for the petitioners as to why for more than two years the application had not been filed before the appellate court, the learned counsel was unable to give any satisfactory reply. Further, it was also not disputed that the similar application filed by the two of the legal representatives of deceased Iqbal Singh was dismissed on 14.1.2008 whereas the present application was filed on behalf of all the legal representatives including those two legal representatives as well. As far as the proposition of law laid down in the judgments cited by the learned counsel for the petitioners is concerned, the principles laid down therein are well recognized, however, in the facts and circumstances of the present case, the same have no applicability. 8. In view of the above, there is no illegality or infirmity in the order dated 11.8.2011 passed by the appellate court. The revision petition is accordingly dismissed. September 26, 2011 (AJAY KUMAR MITTAL) gbs JUDGE