C.R.No.7017 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7017 of 2009 Date of decision: 17.5.2011 Ram Kishan ….Petitioner Vs. Bohti and another ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ajay Ghanghas, Advocate for the petitioner. Mr. Namit Sharma, Advocate for the respondents. Jaswant Singh, J Defendant No.1-petitioner has filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 29.10.2009 passed by the learned Additional Civil Judge (Sr. Division), Panipat vide which his application under Order 6 Rule 17 CPC for amendment of written statement has been dismissed. Brief facts of the case are that plaintiff-respondent No.1 filed a Civil Suit No.435/2005 dated 24.12.2005 against defendant No.1-petitioner and one Ramkali-defendant No.2/proforma respondent (herein) for declaration to the effect that the plaintiff and defendant No.2 are owners of the land comprised in the head note of the plaint and the mutation No.383 entered in favour of defendant No.1-petitioner is null and void; with consequential relief of possession of the land in dispute. During the pendency of the civil suit, an application under Order 6 Rule 17 CPC was filed by defendant No.1/petitioner for amendment of written statement but C.R.No.7017 of 2009 #2# the same was opposed by the plaintiff-respondent No.1 and after hearing both the parties, the same has been dismissed by learned ACJ (Sr. Division), Panipat vide impugned order dated 29.10.2009, hence the present petition. It is contended by learned counsel for the petitioner that the petitioner wanted to incorporate the detail of decree dated 30.8.1984 arising out of Civil Suit titled as Ram Krishan v. Mam Chand on the basis of which the mutation No.383 had been sanctioned in the name of defendant No.1- petitioner. It is further argued that in the suit, plaintiff-respondent No.1 has alleged that mutation No.383 in favour of petitioner-defendant No.1 is null and void as the same is entered on the basis of a decree dated 10.9.1987 but in fact there is no such decree and the only basis is the decree dated 30.8.1984 and as such the amendment was very much necessary for proper adjudication of the matter in controversy. On the other hand, the petition is seriously opposed by plaintiff-respondent No.1 on the ground that the land in dispute was transferred in favour of defendant No.1-petitioner by preparing false mutation No.383 on the basis of decree dated 10.9.1987 but there is no such decree. After hearing learned counsel for the parties and perusing the paper book, this court finds merit in the revision petition and the same deserves to be allowed due to the following reasons: A perusal of plaint (P.1) dated 28.11.2005 revealing the description of land in dispute is as under: “Khewat No.199/179, Khatoni No.254, Rect No.25, Killa No.6 (7-0), 7/1 (7-16), 15/1 (3-10) situated in the area of Village Sikanderpur (Ram Nagar) Tehsil Panipat as per jamabandi for the year 2001-2002” C.R.No.7017 of 2009 #3# Accordingly, the total land is measuring 18 kanal 6 marla. On earlier occasion, Civil Suit No.567 of 1984 titled as Ram Kishan v. Mam Chand filed by the petitioner was decreed vide judgment and decree dated 13.8.1984 (P.4) and the description of the land in that suit is also the same, which reads as under: “Khewat No.62/47 min, Khatoni No.102, Rect No.25, Killa No.6/7-0, 7/1/7-16, 15/1 3-10 situated in Village Sikanderpur the. Panipat vide jamabandi for the year 1981-82” It is also necessary to mention here that one Civil Suit No.200 of 1985 dated 14.3.1985 titled as Dharampal Panch v. Lichhman Singh Sarpanch was filed for permanent injunction but the same was dismissed in default by the Court of Sh. Dharampal, Sub Judge, Ist Class, Panipat vide order dated 10.9.1987 (P.5). However, this suit is neither between the present parties nor having any concern with the land in dispute. Copy of the mutation No.383 dated 2.12.1987 (P.3), which is the basis for controversy in the present civil suit discloses in column No.13 thereof that the same is purported to have been sanctioned on the basis of judgment and decree passed by the court of Sh.Dharampal, Sub Judge, Ist Class, Panipat. Case No.200/85 decided on 10.9.1987 and the description of the land is the same, which is given in the judgment and decree dated 13.8.1984 (P.4). Therefore, it seems that the entry in column No.13 of the mutation (P.3) is a clerical error and in fact the basis of the mutation is the judgment and decree dated 13.8.1984 (P.4) and not the order dated 10.9.1987 (P.5). Relevant paragraphs 2 and 3 of the application dated 16.4.2009 filed by the petitioner under Order 6 Rule 17 CPC (P.6), which are necessary for the decision of present controversy, reads as under: C.R.No.7017 of 2009 #4# “2. That the applicant/plaintiff has given a reference of judgment and decree dated 10.9.1987 in civil suit No.200/85 in the plaint. The revenue department while sanctioning the mutation has committed mistake/error while sanctioning the mutation in favour of Ram Kishan Defendant, on the basis of a judgment and decree dated 13.8.1984 in civil suit No.567 of 84 titled as Ram Kishan versus Mam Chand. In the mutation the name of the parties has been rightly sanctioned the detail of the land has also been rightly given but in column No.13, the number of suit has been wrongly given suit No.200/85 and date of decision has been wrongly given 10/9/1987 and only on the basis of these wrong entries, the written statement was filed by the defendant. On 14.6.2006, but in fact, the judgment and decree dated 13.8.1984 was passed in favour of the defendant. In the affidavit given by defendant also these wrong facts have been mentioned only on the basis of said entry of the mutation. 3. That now the certified copies of the plaint, written statement, statement of Mam Chand and judgment and decree dated 13.8.1984 have been taken and received on 5.3.2009, whereas, the written statement was given on 14.6.2006 and affidavit was given on 6.2.2009.” In view of the above, it is apparently clear that in column No.13 of the Mutation No.383, the recital of judgment and decree dated 10.9.1987 as well as the case No.200/85 is a clerical mistake and in fact it should be judgment and decree dated 13.8.1984 and Civil Suit No.567 of 1984. Be that as it may, the amendment sought in the written statement by the defendant No.1-petitioner is absolutely necessary and justified for proper adjudication of the matter in controversy as the same goes to the route of the case. The law for amendment of the written statement is well settled by Hon'ble Supreme Court and the same is on different footing than the amendment of a plaint. Reference in this regard can be made to following para No.20 of a judgment of Hon'ble Supreme Court reported as Usha C.R.No.7017 of 2009 #5# Balashaheb Swami & Ors v. Kiran Appaso Swami & Ors 2007(2) RCR (Civil 830: “It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.” Keeping in view the facts and circumstances discussed hereinabove, present petition is allowed. Impugned order dated 29.10.2009 passed by the learned Additional Civil Judge (Sr. Division), Panipat is set aside thereby allowing the amendment of written statement subject to payment of Rs.5000/- as costs to be paid by the petitioner to the plaintiff- respondent No.1. May 17, 2011 ( JASWANT SINGH ) manoj JUDGE