IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 170 of 2010 Date of decision: 10.10.2011 Suneel Kumar ….Petitioner. Versus Suneel Kumar and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Bhuvnesh Sharma, Advocate. For the respondents: None. _____________________________________________________________________ Deepak Gupta, J. (Oral) 1. The petitioner (here-in-after referred to as defendant No.1) is aggrieved by the order dated 25th March, 2010 whereby the application filed by him for amendment of the written statement has been rejected. 2. Briefly stated the facts of the case are that respondents No. 1 to 3 (hereinafter referred to as the plaintiffs) filed a suit claiming to be owners in possession of half share of the suit land. They also alleged that in respect of some portion of the suit land defendant No.2 Peetamber was the owner of the half share and in respect of the remaining suit land defendants No. 2 to 4 were also the owners of the remaining half share. The plaintiffs alleged that defendant No.1 was a stranger to the suit land and had wrongly got the revenue entries made in his favour showing him to be a tenant over the said land. The 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 plaintiffs, therefore, challenged the entries showing defendant No.1 to be owner in possession of the suit land. They further prayed that defendants No. 2 to 4 be restrained from raising construction over the suit land till the suit land is partitioned. Defendant No.1 filed a written statement and in the preliminary objection a specific plea was taken that defendant No.1 is in possession of 0-72-56 hectares i.e. 18 kanals and 17 marlas of the land and had become owner of the same by way of adverse possession. In para 2 of the reply on merits it was clearly stated that the entries were made pursuant to the orders passed by the Tehsildar and defendant No.1 was in adverse and hostile possession of the suit land and as such defendant No.1 had become owner of the suit land. However in para No.1 of the written statement on merits defendant No.1 stated as follows:- “That the contents of Para No.1 of the Plaint are denied that the replying defendant is co-sharer to the extent of ½ share. It is correct that the defendant No.1 is a stranger to the suit land. xxx…xxx….xxx… It is correct that the name of defendant No.2 is correctly recorded as owner and in possession.” 3. Now by means of the amendment defendant No.1 wants to replace the word “replying defendant” by “plaintiffs and defendant No.2” and word “correct” by the word “incorrect”. This amendment has been rejected only on the ground that since admission has been made by defendant No.1 that he was stranger to the suit land and the name of defendant No.2 was correctly recorded as owner in possession of the suit land, he could not be permitted to amend the written statement. The application for amendment was moved much prior to the framing of the issues and if the entire written statement is 3 read as a whole it is more than apparent that the plaintiffs were setting up a plea that they had become owners by way of adverse possession. They have clearly stated in the other paragraphs that the entries in the revenue record have been made in favour of defendant No.1 by order of the Tehsildar. Therefore, the so called admission that he was a stranger to the suit land appears to have been made by inadvertence and it is obvious that there was either a typographical error or some mistake by the counsel when these averments were being made because these averments cannot co-exist with the plea of adverse possession and the revenue entries being correct set up in the other part of the written statement. 4. Therefore, I am of the considered view that the learned trial Court was not at all justified in rejecting the application. The petition is allowed. The written statement is allowed to be amended subject to payment of costs of Rs.5000/-. Exemplary costs have been imposed because the earlier written statement was filed in the year 2005 and the application for amendment was moved four years later in the year 2009. It is only defendant No.1, who is contesting the suit in this Court also. The learned trial Court is directed not to again summon the other defendants. Since the suit relates to the year 2002 shall make an endeavour to decide the same as early as possible and in any event not later than 31st May, 2012. If necessary the case shall be fixed on day to day basis. 10th October, 2011 (Deepak Gupta) ™ Judge.