CR No.1021 of 2009 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.1021 of 2009 (O&M) DATE OF DECISION: 26.11.2009 **** Vijay Kumar Garg . . . . Petitioner VS. Sushma Juneja and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Kulvir Narwal, Advocate for the petitioner Mr. Vijay Pal Singh, Advocate for respondents **** SURYA KANT J.(ORAL) (1). This revision petition is directed by the plaintiff against the order dated 05.02.2009 passed by the Additional Civil Judge (Senior Division), Jhajjar, whereby, respondent-defendant No.2 (Harsh Juneja) has been permitted to file a separate amended written statement on his behalf. (2). The petitioner-plaintiff has filed a suit for possession by way of specific performance an agreement to sell dated 25.01.2000 executed by Smt. Sushma Juneja – respondent/defendant No.1 in respect of a residential house situated in Ward No.5 within the municipal limits of Jhajjar. CR No.1021 of 2009 - 2 - (3). The above-stated suit was instituted on 11.09.2003 in which the petitioner-plaintiff has impleaded Smt. Sushma Juneja as well as her two sons, namely, Harsh Juneja and Arun Juneja as Defendant Nos.1, 2 and 3 and her daughter Smt. Deepa Juneja as defendant No.4. Defendant No.2 to 4 have been impleaded through their mother who has got their General Power of Attorney. (4). A joint written statement, duly verified by Smt. Sushma Juneja, was filed on 15.10.2003 on behalf of all the defendants. (5). Both the parties, thereafter, led their evidence. When the suit was fixed for rebuttal and arguments, defendant No.2 (Harsh Juneja) moved an application under Order 6 Rule 17 CPC for ‘amendment’ of the written statement on his behalf and/or to allow him to file a separate written statement, inter alia, on the grounds:- i. that he is not a signatory to the ‘Agreement to Sell’ dated 25.01.2000; ii. that the General Power of Attorney dated 08.02.2000 executed by him in favour of his mother was allegedly obtained fraudulently and in any case was non-existent on the date when ‘agreement to sell’ was executed; iii. that no notice was ever served on him in the Civil Suit. (6). The above-stated application has been allowed by the learned Civil Court vide the impugned order dated 05.02.2009. CR No.1021 of 2009 - 3 - (7). Aggrieved, the petitioner-plaintiff has approached this Court by way of this revision petition. (8). Notice of motion was issued and pursuant thereto learned counsel for the parties have been heard. (9). The undisputed facts are that the petitioner entered into an ‘Agreement to Sell’ with respondent No.1 – Smt. Sushma Juneja on 25.01.2000 regarding sale of the house in question. Soon after the said agreement, all the sons and daughters of respondent No.1 executed a registered Power of Attorney (Ex.PX) on 08.02.2000 in favour of their mother which is duly registered with the Sub Registrar at Jhajjar. The General Power of Attorney expressly authorizes Smt. Sushma Juneja – mother of the Executors, to transfer, sell the house and/or to appear on their behalf before the Sub-Registrar and make necessary statements wherever required. The Power of Attorney also authorizes Smt. Sushma Juneja to receive sale consideration on behalf of the Executors including Defendant No.2 (Harsh Juneja). A certified copy of the General Power of Attorney dated 08.02.2000 has been placed on record by the petitioner (Annexure P3). (10). The written statement was admittedly filed by Smt. Sushma Juneja on 15.10.2003 for and on behalf of all the defendants, much after the execution of the Power of Attorney in her favour by rest of the other defendants. Smt. Sushma Juneja was, thus, fully competent and authorized to file the written statement for and on behalf of all the defendants including Harsh Juneja (defendant No.2). CR No.1021 of 2009 - 4 - (11). In these circumstances, when a duly authorized person has already filed the written statement, the learned Civil Court ought not to have allowed amendment or liberty to file a fresh written statement to defendant No.2 on the grounds pleaded by him in his application for amendment, especially, having regard to the legislative intent behind the Proviso added to Rule 17 of Order 6 CPC by way of Code of Civil Procedure (Amendment) Act, 2002 as interpreted by their Lordships of the Supreme Court in Vidyabai and others vs. Padmalatha and another (2009) 2 SCC 409 and Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. (2006) 12 SCC 1. (12). Suffice it to observe that the plea taken by defendant-responent No.2 that he is not a signatory to the ‘Agreement to Sell’ dated 25.01.2000 and the same is not binding on him, is an issue which can be raised by him at the time of final hearing of the suit and the same shall be gone into by the Ld. Civil Court in accordance with law. (13). For the reasons afore-stated, the revision petition is allowed; the impugned order dated 05.02.2009 passed by the Additional Civil Judge (Senior Division), Jhajjar is hereby set aside and the application moved under Order 6 Rule 17 CPC by defendant No.2 for amendment of the written statement is dismissed. (14). Dasti. (SURYA KANT) JUDGE 26.11.2009 vishal shonkar CR No.1021 of 2009 - 5 -