C.R No.8137 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.8137 of 2010 Date of order: 03.02.2011 Baljit Singh and another ....Petitioners Versus Raghbir Singh and others ...Respondents CORaj: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ajay Jain, Advocate for the petitioners. JASWANT SINGH, J Defendant Nos.1 & 2-petitioners have preferred the present revision petition under Article 227 of the Constitution for setting aside the impugned order dated 29.11.2010 passed by the learned Civil Judge (Jr.Division), Hisar whereby their application under Order 6 Rule 17 CPC for amendment of written statement has been dismissed. Briefly noticed the facts of the case are that a Civil Suit No.157-C dated 28.3.2006 was filed for declaration to the effect that plaintiff and proforma defendants are owners-in-possession in equal shares of land measuring 7 kanal 16 marlas as described in the head note of the plain. It is necessary to mention here that respondent No.4-Smt Ram Rati was the proforma defendant. During the pendency of the civil suit, an application dated 7.12.2009 (P.1) was filed by the petitioners under Order 6 Rule 17 CPC for amendment of the written statement, which has been dismissed vide the impugned order, hence the present petition. Heard learned counsel for the petitioner. Learned counsel argues that the impugned order passed by the C.R No.8137 of 2010 #2# learned trial Court is wholly erroneous and is not sustainable in the eyes of law as the ground pleaded for withdrawal of an admission made by the defendants/petitioners in their written statement was due to the mistake of their counsel. It is further argued that the law is well settled that the parties should not suffer on account of a mistake as well as any omission committed by their counsel. It is further argued that the provisions of Order 6 Rule 17 CPC are to do complete justice between the parties and not to frustrate the same. It is also argued that as per the law settled by Hon'ble Supreme Court, the power to allow amendment of pleadings is very wide and vested in the courts. In support of his case, learned counsel cites the following judgments: 1. Gautam Sarup v. Leela Jetly and others, (2008) 7 SCC 85, 2. Vidyabai and Ors v. Padmalatha and Anr (2009) 2 SCC 409 3. Revajeetu Builders & Developers v. Narayanaswamy & Sons and Others (2009) 10 SCC 84 4. Ramanand v. Sedhu and others, 2010(2) RCR (Civil) P&H 31 There is no dispute that civil suit was filed on 28.3.2006 and issues were framed on 31.1.2009 and the plaintiff tendered his affidavit by way of examination in chief on 23.9.2009. It is also not in dispute that the case was fixed for cross examination by defendants on four different dates between 27.10.2009 to 7.12.2009. It is also not in dispute that throughout the plaintiff was very much present on all the above four dates for cross examination. At this stage, the petitioners filed the application for seeking amendment of written statement of paragraph Nos.2,4 and 7 and for deciding the matter in controversy, it is necessary to reproduce the original paras of written statement as well as the proposed amended paragraphs which read as under: C.R No.8137 of 2010 #3# Original Proposed 2. That the contents of para No.2 of the plaint are admitted to be correct but here it is submitted that Smt Chander Pati contracted Karewa marrriage with Shri Dalel Singh much after the death of Shri Inder Singh and not only after one month. 4. That the contents of para No.4 of the plaint are admitted to be correct to the extent that the parties to the suit are Jats by caste but the rest contents of this para are wrong hence denied. It is specifically denied they are governed by customs in the matter at alienation and succession etc prevalent in Hisar District according to which the widow entering Karewa marriage after the death of her husband forfeits her right in land inherited upon the death of her husband and the same reverts back to the natural heirs of deceased. It is also specifically denied that the share of Smt Chander Pati having inherited on the death of Shri Inder Singh stood reverted to the plaintiff and performa defendant on her Karewa marriage with Dalel Singh and they are coming in possession of the same as owners. 7. That the contents of para No.7 of the plaint are wrong, not admitted as correct and hence denied. It is specifically denied that the Will bearing No.43 dated 14.9.2004 executed by Smt Chander Pati in favour of derfendant Nos.1 and 2 is based on forgery and the mutation No.2142 dated 1.8.2005 has been sanctioned in collusion with the defendant Nos.3 & 4. It is also specifically denied that the notice of this mutation was given to the plaintiff only in the last week of December, 2005 and only then the plaintiff came to know these entries. It is also 2. That the contents of para No.2 of the plaint are totally wrong, incorrect and hence denied. It is admitted to this extent that Smt Chander Pati was married to Shri Inder Singh and two children namely Raghbir Singh and Ram Ratti were born out of this wedlock. It is denied that Smt Chander Pati performed Karewa marriage with Shri Dalel Singh brother of the deceased. It is further submitted here that four children were born from Dalel Singh. Moreover, there was/is no custom of Karewa in the village. 4. That the contents of para No.4 of the plaint are admitted to be correct to the extent that the parties to the suit are Jats but the rest of the contents of this para are wrong and hence denied. It is specifically denied they are governed by customs in the matter at alienation and succession etc prevalent in Hisar District according to which the widow entering Karewa marriage after the death of her husband forfeits her right in land inherited upon the death of her husband and the same reverts back to the natural heirs of deceased. It is also specifically denied that the share oef Smt Chander Pati having inherited on the death of Shri Inder Singh reverted to the plaintiff and proforma defendant. There is no Karewa marriage with Dalel Singh and they are not coming in possession of the same as owners. Here it is submitted that the parties are not governed by any customs as alleged by the plaintiff but they are governed by Hindu Succession Act after coming this Act in force in 1956. Therefore, the mutation of inheritance on the death of Shri Inder Singh was rightly sanctioned in favour of Smt Chander Pati and she became absolute owner in possession since then even as per Section 14 of the Hindu Succession Act. Therefore, Smt Chander Pati was owner in possession of the suit land until her death and thereafter the answering defendants are owners in possession of the suit land on the basis of the Will dated 14.9.2004 and the plaintiff and proforma defendant are neither owners nor in possession of the same. 7. That the contents of para No.7 of the plaint are totally wrong, incorrect and hence denied. It is specifically denied that the Will bearing No.43 dated 14.9.2004 executed by Smt Chander Pati in favour of C.R No.8137 of 2010 #4# specifically denied that the plaintiff had no knowledge whatsoever about these entries prior to December, 2005 and the defendant Nos.1 and 2 are not entitled to succeed to the land referred to at Serial No.1 and partly at Serial No.3 on the ground that Smt Chander Pati was not the heir of Shri Mula and the land referred to at Serial No.2 and partly at Serial No.3 shown in the name of Smt Chander Pati stood reverted to plaintiff and performa defendant on her entering in Karewa marriage with Dalel Singh. It is also specifically denied that the plaintiff and performa defendant are owners in equal share on the land in dispute as detailed in the head note of the plaint. Here, it is submitted that Smt Chander Pati was owner in possession of the land in dispute and the same has Legally bequeathed in favour of the answering defendants vide registered Will No.43 dated 14.9.2004 and the mutation of the same was also sanctioned on 1.8.2005 in Jalsa-Aam and also in the presence of the plaintiff who also accepted the same by not making any objection to this effect.” Defendant no.1 and 2 is based on forgery and the mutation No.2142 dated 1.8.2005 has been sanctioned in collusion with the defendant Nos.3 and 4. It is also specifically denied that the notice of this mutation was given to the plaintiff only in the last week of December 2005 and only then the plaintiff came to know these entries. It is also specifically denied that the plaintiff had no knowledge whatsoever about these entries prior to December, 2005 and the defendant Nos.1 and 2 are not entitled to succeed to the land referred to at Serial No.1 and partly at Serial No.3 on the ground that Smt Chander Pati was not the heir of Shri Mula and the land referred to at Serial No.2 and partly at Serial No.3 shown in the name of Smt Chander Pati stood reverted to plaintiff and proforma defendant on her entering in Karewa marriage with Dalel Singh. There was no Karewa marriage of Smt Chander Pati with Dalel Singh. Though no Karewa was performed by Smt Chander Pati with Dalel Singh, if it is proved then the Will in question had legally and rightly been executed and got registered in favour of answering defendants and it is further added here that answering defendants were born from loins of Dalel Singh and from the womb Chander Pati as she used to live with Dalel Singh but not as a wife. It is also specifically denied that plaintiff and proforma defendant are owners in equal share of the land in dispute as detailed in the head note of the plaint. Here, it is submitted that Smt Chander Pati was owner in possession of the land in dispute and the same has been legally bequeathed in favour of the answering defendants vide registered Will No.43 dated 14.9.2004 and the mutation of the same was also sanctioned on 1.8.2005 in Jalsa Aam and also in the presence of the plaintiff, who also accepted the same by not making any objection to the effect. A perusal of the paragraph reproduced hereinabove reveals that the petitioners categorically admitted in their written statement that Smt Chander Pati contracted Karewa marriage with Sh. Dalel Singh but now it is being denied that Smt Chanderpati ever performed any Karewa marriage with Sh. Dalel Singh rather it is submitted that there is no karewa marriage with Dalel Singh. It is further sought to be added that answering defendants C.R No.8137 of 2010 #5# were born from the loins of Dalel Singh and from the womb of Chander Pati as she used to live with Dalel Singh but not as a wife. Therefore, the petitioners are taking a U turn and trying to resile from their candid admission in a duly verified written statement filed through a duly authorized counsel. The submission that admission is due to the result of communication gap with the counsel is in my opinion an after-thought and cannot be accepted to be as bonafide or inadvertent. Even during the pendency of the present revision petition, this Court vide interim order dated 15.12.2010 granted liberty to the petitioners to show his bonafide by filing an affidavit that he has proceeded against the counsel for misconduct and the order reads as under: “Learned counsel for the petitioner seeks time. The impugned order reveals that the only ground which has been pleaded for withdrawal of an admission is that the petitioners had given some information to his counsel, who did not represent the facts correctly in the written statement resulting in advertent admission. This Court is of the opinion that such pleas which are raised repeatedly are more or less a convenient ploy to get over an inconvenient situation. To enable the learned counsel for the petitioners to show his bona fides let him file an affidavit that he has proceeded against the counsel for misconduct. Adjourned to 20.1.2011.” Despite granting an opportunity by this Court, no such affidavit has been filed by the petitioners for the reasons best known to them. There is no dispute that civil suit was filed on 28.3.2006 and issues were framed on 31.1.2009 and the plaintiff tendered his affidavit by way of examination in chief on 23.9.2009. It is also not in dispute that the case was fixed for cross examination by defendants on four different dates between 27.10.2009 to 7.12.2009 and that throughout the plaintiff was very C.R No.8137 of 2010 #6# much present on all the above four dates for cross examination but he was not cross examined by the petitioners knowingly and deliberately. Learned trial Court has rightly observed that under the garb of application for amendment the petitioners are trying to withdraw the admission made in their written statement, which cannot be permitted by way of an amendment as the same will prejudice the rights of the plaintiff. The trial has already commenced and the present suit has been instituted after the amendment of the provisions of Order 6 Rule 17 CPC. This is not the case of the petitioners that the admission made in the written statement is without their authorization by their counsel. Merely by saying that this is due to communication gap is not acceptable at this stage. Judgment cited by counsel for the petitioners are not helpful to his cause rather go against them and which are dealt with as under: In case of Gautam Sarup (supra), the application for amendment of written statement was filed and the same was allowed by the learned trial Court and affirmed by this Court in the revision petition and ultimately the matter was taken to the Hon'ble Supreme Court wherein the judgments of this court was set aside and it was held as under: “What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other:” In Vidyabai's case (supra), defendants-respondents filed an C.R No.8137 of 2010 #7# application for amendment of written statement, which was dismissed by the learned Civil Judge (Jr.Division), Hubli and thereafter the matter was assailed in the High Court of Karnatka at Banglore in a writ petition, which was allowed and the application for amendment of written statement was accepted. Ultimately, the matter was taken to the Hon'ble Supreme Court wherein the order passed by the Karnatka High Court was set aside and amendment of written statement was declined and held as under: “By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: “Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre- condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filling of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding.” In Revajeetu Builder's case (supra), plaintiff-appellant filed an application for amendment of plaint to add two additional paragraphs alongwith a prayer clause and to delete certain paragraphs of the plaint as well as some prayer clauses, which was allowed by learned trial Court. C.R No.8137 of 2010 #8# Respondents-defendants challenged that order before the High Court of Karnatka in a writ petition, which was allowed and it was held that the plaintiff-appellant cannot withdraw the admission made in the plaint as it would affect the rights of the defendants-respondents. Ultimately, the matter was carried to the Hon'ble Supreme Court wherein the appeal of the plaintiff-appellant was dismissed and the order passed by Karnatka High Court was affirmed and the Hon'ble Supreme Court held as under: “ On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for 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. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. “ In Ramanand's case (supra), plaintiff-petitioner filed an application for amendment of plaint praying that she should be allowed to incorporate a plea that after the demise of Mukanda, his legal heirs executed C.R No.8137 of 2010 #9# an agreement to sell dated 13.6.1981 and delivered possession of their half share to the plaintiff-petitioner and these facts were brought to the notice of his counsel but were not pleaded on account of a bona fide error, which was declined by learned Civil Judge (Jr.Division), Rewari. A revision petition was filed challenging the order of learned Civil Judge, which was allowed by this Court by observing as under: “10. A prayer for amendment of pleadings made after the commencement of a trial, shall ordinarily be declined. Where, however, the applicant establishes that despite the exercise of due diligence, he could not raise the pleadings sought to be pleaded by way of amendment, before the commencement of a trial, a court would be justified in allowing such an amendment. The power, therefore, to allow amendment of pleadings, even after the commencement of the trial, subsists, but with a caveat that the party praying for amendment must establish that despite the exercise of due diligence, the pleadings sought to be pleaded by way of an amendment could not be raised before the trial commenced. A court, therefore, may where it is of the opinion that the amendment is necessary for the purpose of determining the real controversy and if the applicant satisfies the court that despite the exercise of due diligence, he could not raise the pleadings before the trial commenced, allow such a prayer, even after the commencement of the trial. 11. The trial court rejected the prayer for amendment by holding that as issues have been framed and the petitioner has failed to establish the exercise of “due diligence”, his prayer for amendment cannot be accepted. 12. Apart from the fact that the trial court misread the import of Order 6 Rule 17 of the Code, as explained herein above, it also failed to comprehend the petitioner's plea that he had entrusted all relevant documents and disclosed all relevant facts to his counsel. The error in raising the pleadings, as instructed, was on the part of the counsel, who failed to incorporate pleadings with respect to the agreement to sell dated 13.6.1981. A party, reposes implicit faith in his counsel and if a counsel commits a bonafide C.R No.8137 of 2010 #10# error, despite having received all relevant documents and instructions from a party, a litigant cannot be punished for the error of his counsel. In such a situation, a party would be entitled to urge that the error committed by his counsel falls within the meaning of expression “due diligence”. The argument that the agreement to sell dated 13.6.1981 is null and void, as the property had already been sold to respondent Nos.1 to 3onsidered during the final adjudication of the suit and cannot by itself be a ground to decline the prayer for amendment. As the amendment prayed for is necessary for the purpose of determining the real questions in controversy, the trial court should have allowed the prayer for amendment. “ The Ramanand's case (supra) is clearly distinguishable to the present case as in that case there was an omission on the part of the counsel as he failed to incorporate the pleadings with respect to the agreement to sell dated 13.6.1981 despite the fact that said document was entrusted to the counsel but in the present case, the position is entirely different. As for the sake of repetition, a clear, categoric and candid admission made by the defendant-petitioners in a duly verified written statement by an authorized counsel is sought to be withdrawn at the stage of cross examination of the plaintiff-respondent and this is not a mere omission rather from the facts and circumstances of the case, it can safely be concluded that the amendment proposed to be made is to take a altogether new and different stand and change the whole scenario of the case. As the factum of admission of karewa marriage of Chander Pati with Dalel Singh, who happens to be the brother of deceased Inder Singh with whom Chander Pati initially got married is a vital aspect of the case and cannot be taken lightly and casually at this stage. Keeping in view the facts and circumstances discussed hereinabove and in view of the law laid down by Hon'ble Supreme Court, C.R No.8137 of 2010 #11# this court does not find any illegality or perversity in the impugned order dated 29.11.2010 passed by the learned Civil Judge (Jr.Division), Hisar, which warrants interference by this Court under Article 227 of the Constitution. Dismissed. February 03, 2011 ( JASWANT SINGH ) manoj JUDGE