CR No.5522 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5522 of 2009 (O&M) Date of decision: 15.7.2010 Bhupinder Singh ......Petitioner(s) Versus Pakhar Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjay Gupta, Advocate for the petitioner. Mr. Sandeep Jain, Advocate for the respondent. Rakesh Kumar Garg, J. CM No.22718 & 22719-CII of 2009 Applications are allowed subject to all just exceptions. CM No.22720-CII of 2009 Application is allowed. Documents are taken on record. CR No.5522 of 2009 This is plaintiff’s revision petition challenging the impugned order dated 10.8.2009 passed by the Civil Judge (Sr. Division), Nawashahar whereby application under Order 6 Rule 17 CPC filed by the defendant-respondent was accepted and amendment in the written statement was allowed at the fag end of the case. As per averments made in this petition, the petitioner filed a suit on 27.7.2002 for specific performance of the agreement to sell dated 4.5.2001 in his favour by the respondent. In the written statement filed on behalf of the respondent, a categoric plea was taken by him that he was in need of a loan and therefore, an agreement to sell in question was executed as a matter of security to ensure the return the loan amount. CR No.5522 of 2009 (O&M) 2 On the basis of the pleadings of the parties, issues were framed by the trial Court on 4.5.2005, and thereafter, the petitioner led his evidence. Thereafter the defendant-respondent led his evidence and closed the same on 15.4.2008 voluntarily and thereafter, the case was adjourned to 12.5.2008, 31.5.2008, 24.7.2008, 25.7.2008, 20.7.2008, 30.7.2008. 27.8.2009, 29.9.2008, 23.10.2008, 25.11.2008, 9.1.2009 for rebuttal evidence, if any and arguments. The present application for amendment of the written statement was filed by the respondent on 9.1.2009 alleging therein that the agreement in question was never intended to be acted upon and it was a simple transaction of a loan between the parties which was clear from the facts as mentioned in the aforesaid application for amendment. The amendment sought by the respondent reads as follows:- “Para No.2(A) : That the agreement dated 4.5.2001 was never intended to be acted upon. It was a simple transaction of loan between the parties and this fact is clear from the following resume of facts:- a) that there has been an earlier similar agreement between the parties on 4.12.1998 which was never acted upon. b) that the price of the property in dispute has been fixed at Rs.2,00,000/- whereas the market price of the property in dispute is not less than Rs.50,00,000/- in any case. It is a big residential house located on the main road. c) that although it is recited in the agreement dated 4.5.2001 that possession has been delivered to the plaintiff but the same was never transferred to the plaintiff and the defendant along with his family is living in the property in dispute. CR No.5522 of 2009 (O&M) 3 d) that there are recitals in the agreement dated 4.5.2001 that land has been agreed to be sold whereas the property in dispute consist of a big residential house where the defendant along with his wife and other family members is residing and the defendant has his vote, ration card electricity connection, telephone connection and water supply in the house in dispute. The defendant could never think of selling his only residential house. The site plan of the property in dispute is attached herewith. e) that there are recitals in the agreement dated 4.5.2001 that the price has been settled at Rs.2,00,000/- and a sum of Rs.1,66,000/- is claimed to have been paid on the day of execution of the agreement yet the date of registration has been postponed to a period of one year which also suggest that it was only a loan transaction.” The trial Court vide impugned order allowed the aforesaid application observing as under:- “The basic argument of learned counsel for the plaintiff is that the application has been filed to delay the case and the knowledge of the agreement was with the respondent. However, since a specific plea has been taken by the respondent, the interest of justice requires that the same be brought on record, the delay can be compensated with costs. Accordingly, I allow this application, subject to payment of Rs.800/- as the costs.” Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that in the present case both the parties had led their evidence and the same was closed long back and the case was only at the fag end of the trial when the present application was moved CR No.5522 of 2009 (O&M) 4 and this fact alone is sufficient to hold that amendment sought by the respondent was nothing but to drag on the proceedings indefinitely. He has further argued that the falsity of the arguments raised by the respondent can be very well deduced from the fact that execution of the agreement to sell in question has been admitted and it is only a false and concocted plea in order to prolong the civil suit which is already more than 8 years old. Learned counsel for the petitioner has further relied upon a judgment of the Hon’ble Supreme Court in Vidyabai & Ors. v. Padmalatha & Anr. 2009(1) RCR (Civil) 763 wherein it has been held that the Court has no jurisdiction to allow amendment in pleadings after commencement of trial. It is well settled that trial would deem to commence when after framing of issue, the witness files an affidavit in lieu of examination-in-chief. Learned counsel has further argued that amendment sought by the respondent was not necessary to decide the real dispute between the parties. Learned counsel for the petitioner has also relied upon a judgment of the Hon’ble Supreme Court in Ajendraprasadji N.Pande & Anr. v. Swami Keshavprakeshdasji N. & Ors. 2007(1) RCR (Civil) 481 wherein the above said view of the Hon’ble Apex Court has been reiterated. Thus, on the basis of the aforesaid arguments, learned counsel for the petitioner has submitted that the impugned order is liable to be set aside. On the other hand, learned counsel appearing on behalf of the respondent has cited a judgment of the Hon’ble Supreme Court in Revajeetu Builders & Developers v. Narayanaswamy & Sons & Others 2010(1) RCR (Civil) 27 to contend that while deciding such application for amendment, the Courts must not refuse bona fide, legitimate, honest and necessary amendments. Learned counsel has also relied upon another judgment of the Hon’ble Supreme Court in Peethani Suryanarayana & another v. Repaka Venkata Ramana Kishore & Ors. 2009(2) RCR CR No.5522 of 2009 (O&M) 5 (Civil) 521 whereby it has been held that while allowing amendment in pleadings, the Court has wide powers to allow amendments and the same can be allowed even after passing of final decree if no prejudice is caused to the parties. On the basis of the aforesaid judgments, learned counsel for the respondent has contended that the impugned order has been passed in accordance with law and therefore, the same does not warrant any interference by this Court. I have heard learned counsel for the parties and perused the impugned order and the judgments cited by the learned counsel for the parties. No doubt, the Hon’ble Supreme Court of India in the case of Vidyabai's case (supra) has held that the Court has no jurisdiction to allow amendment after the commencement of trial and the trial is deemed to have commenced when the issues are settled and the case is set down for recording of evidence. However, it may be relevant to mention at this stage that even in the aforesaid judgment, the Hon'ble Apex Court has held that it is the primal duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Similarly, the Hon'ble Supreme Court of India in Ajendraprasadji N.Pande's case (supra) has held that any provision should not be interpreted in a manner that the part of which becomes otiose and meaningless. It is also relevant to mention that in Revajeetu Builders & Developers's case (supra) the Hon'ble Supreme Court has laid down the various principles which are to be taken into consideration while allowing or rejecting the application for amendment which reads as follows:- (1) Whether the amendment sought imperative for CR No.5522 of 2009 (O&M) 6 proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? 3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." In Peethani Suryanarayana's case (supra), the Hon'ble Apex Court has held that the Court has wide powers to allow amendment, however, the aforesaid powers are subject to the fact that such application must be bona fide and the same should not cause injustice to the other side and should not affect the rights already accrued to the other side. Thus, from the aforesaid discussion, what emerges is that the power of the Court to allow the amendment in pleadings differs from case to case and depends upon the facts of each case and broadly stating that decision on application under Order 6 Rule 17 CPC is a very serious judicial exercise and the same cannot be undertaken in a casual manner and if the application for amendment is mala fide, worthless and dishonest and is designed to delay legal proceedings, the same should be discouraged but if the amendment sought is bona fide, legitimate, honest and necessary, the Court must not refuse the same. CR No.5522 of 2009 (O&M) 7 Keeping in view the aforesaid parameters for amendment in the pleadings, if we examine the facts of the present case as narrated above, it is clearly established that the present application filed by the defendant-respondent for amendment at the fag end of the case is nothing but misuse of the aforesaid provisions for amendment. It seems that the only motive of the respondent herein is to drag the proceedings indefinitely and has been filed malafidely. No reason has been given by the respondent to seek amendment at such a belated stage. Even it has not been mentioned in the application that the respondent was pursuing his case with due diligence. The only ground stated is that the defendant could not elaborate his defence earlier. In this view of the matter, I find merit in this petition. The impugned order is not sustainable in the eyes of law and the same is hereby set aside. The revision petition is allowed. July 15, 2010 (RAKESH KUMAR GARG) ps JUDGE CR No.5522 of 2009 (O&M) 8