IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5739 of 2008 (O&M) Date of Decision: 8.1.2009. Gurcharan Singh ....Petitioner Versus Gurjant Singh and another ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr.Kapil Aggarwal, Advocate for the petitioner. RAJESH BINDAL, J. **** Challenge in the present petition is to the order passed by the learned Additional District Judge, dated September 23, 2008, whereby the application filed by the petitioner seeking amendment of the written statement at the first appellate stage was dismissed. Briefly the facts are that a suit was filed by respondent No.1 for possession by way of specific performance of agreement to sell dated August 21, 2001 against the petitioner and respondent No.2. In the suit, the challenge was also made to a sale deed registered in favour of petitioner on May 16, 2002 regarding the same property. The suit filed by respondent No.1 was decreed by the trial Court. Aggrieved against the same the petitioner filed appeal before the learned Lower Appellate Court on August 11, 2005. It was during the pendency of the appeal that the application for amendment of the written statement was filed on November 8, 2006 which was dismissed by the learned lower Appellate Court. C.R. No. 5739 of 2008 (O&M) -2- Learned counsel for the petitioner submitted that infact the application was filed on October 6, 2004 before the trial court seeking amendment of written statement but the same was never decided and the suit was decreed on July 27, 2005. This necessitated filing of the application for amendment of the written statement before the learned lower Appellate Court. He further submitted that the only plea he wants to take in the amended written statement is regarding their being an agreement to sell dated June 17, 2001 executed by respondent No.2 in favour of the petitioner with regard to the suit property and further that the consideration settled was paid before the Sub Registrar at the time of registration of sale deed. The same will not change the nature of the suit and the respondent No.1 can very well be compensated with costs. After hearing learned counsel for the petitioner, I do not find any merit in the submissions made. The suit by way of specific performance with regard to the property was filed by respondent No.1 against respondent No.2 on July 7, 2002 in which the sale deed of the property in favour of the petitioner was also challenged. The petitioner filed his written statement on August 6, 2002. It is alleged that on October 6, 2004, an application for amendment of written statement was filed for taking the aforesaid plea. However, the suit was decreed on July 27, 2005 and the application remained undecided. A perusal of the grounds taken in appeal filed against the judgment and decree of the trial Court filed by the petitioner does not show any averment with regard to filing or non decision of any application for amendment of written statement before the trial Court. C.R. No. 5739 of 2008 (O&M) -3- The appeal was filed by petitioner on August 11, 2005. The application for amendment of written statement was filed more than one year three months thereafter on November 8, 2006 to take the plea that there was prior agreement to sell executed by respondent No.2 in favour of petitioner on the basis of which the sale deed was registered on payment of sale consideration. A plea was sought to be taken before the Court below that the trial Court has made a separate file of the application and the same was not traceable. In any of the orders passed by the trial Court after the application for amendment of written statement was allegedly filed there is no mention of filing of any application. The plea which is sought to be taken by way of amendment was well within the knowledge of the petitioner even at the time of filing written statement initially on August 6, 2002 and the same is not a fact which came to the notice of petitioner lateron. Keeping in view the aforesaid facts I do not find that filing of application at this stage is bonafide. Accordingly, the revision petition is dismissed. (RAJESH BINDAL) 8.1.2009 JUDGE Reema