IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR NO.4684/2008 Date of Decision:4.2.2009 Chand Rani Bhalla and others ..........Petitioners. Versus Poonam ..........Respondent CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Karmjit Verma,Advocate for the petitioners-defendants. Mr.Gaurav Sharma,Advocate for respondent-plaintiff. JASWANT SINGH,J Petitioners-defendants have filed this petition under Article 227 of the Constitution of India for setting aside the order dated 11.8.2008 (Annexure P/1) passed by learned Additional Civil Judge (Senior Division) Phagwara, whereby application moved by them for amendment of written statement has been declined. Brief facts are that respondent-plaintiff filed a suit for possession and specific performance with a direction to the petitioners- defendants to execute a sale deed of the shop measuring 16' x 42' on the basis of agreement to sell dated 18.1.2000, executed between late husband of petitioner no.1-defendant no.1 and father of petitioners2 to 5-defendants 2 to 5 and respondent-plaintiff. Alternative prayer made was for recovery of damages of Rs.8 lacs- 4 lacs as earnest money and 4 lacs as damages. It was pleaded by the respondent-plaintiff that as CR NO.4684/2008 2 per the agreement to sell dated 18.1.2000 the sale deed was to be executed on or before 30.4.2000. Unfortunately, the executant husband of the petitioner-defendant no.1, died on 3.3.2000. Thereafter, it appears that another sum of Rs.2 lacs was paid to petitioner no.1- defendant no.1 on 28.4.2000 and the date of execution of the sale deed was extended upto 30.8.2000. Upon refusal of the petitioners- defendants to execute the sale deed, the aforesaid suit was filed by the respondent-plaintiff on 25.3.2002. Upon notice, petitioners-defendants entered appearance and filed written statement taking the stand that the alleged agreement to sell dated 18.1.2000 is without consideration and the same is forged and fabricated. Issues were framed on 29.1.2004 and respondent-plaintiff concluded her evidence on 18.2.2008. During their evidence, petitioners-defendants moved an application dated 5.3.2008 (Annexure P/2) under Order 6 Rule 17 CPC, seeking amendment of the written statement by stating that one document was found from the old papers of late husband/father (late Jagat Parkash Bhalla) of petitioners-defendants, having endorsement made by Rajiv-husband of the plaintiff in his own handwriting and under his signatures to the effect that out of the initial amount of Rs.2 lacs only Rs.40,000/- were given and balance of Rs.1.60 lacs is left to be paid and therefore, there was no valid agreement to sell. Respondent-plaintiff filed reply to the said application CR NO.4684/2008 3 under Order 6 Rule 17 CPC. After hearing the learned counsel for the parties, the said amendment application moved by the petitioners-defendants was dismissed vide impugned order dated 11.8.2008 (Annexure P/1). I have heard learned counsel for the parties. From the material placed on record, it cannot be disputed that the defendants in their written statement had admitted that petitioner no.1-defendant no.1-Chand Rani Bhalla had issued notice dated 3.5.2001 to respondent-plaintiff (served on 7.5.2001) whereby finally extending the date of execution of the sale deed upto 21.3.2001. It is further admitted that petitioner no.1-defendant no.1 remained present in the office of Sub Registrar, Tehsil Complex, Phagwara for the execution of the sale deed. It is also stated that in reply to the notice dated 3.5.2001 issued by defendant no.1, reply was issued by the respondent-plaintiff on 12.3.2001, asking for certain documents which were sent by the petitioner no.1/defendant no.1 vide her notice dated 13/14.3.2001. The respondent-plaintiff was asked to pay the balance amount of Rs. 9 lacs to petitioner no.1-defendant no.1 within 15 days failing which her earnest money of Rs. 4 lacs shall stand forfeited. In these facts,this Court is of the opinion that the learned trial Court rightly found that the aforesaid admission of the petitioner- defendant no.1 cannot be permitted to be withdrawn as the proposed amendment sought by the defendants would displace the defence taken by them, after the evidence of the plaintiff had already concluded and CR NO.4684/2008 4 even petitioners-defendants had availed two opportunities to lead their evidence. Moreover, had there been part payment of the initial amount- as alleged by petitioners/defendants in the amendment application- it does not appeal to reason that late husband of the petitioner no.1-defendant no.1, in the ordinary course of nature, would not have disclosed that fact to his family, much less his wife, during his lifetime and died with said factum buried deep in his bosom. Accordingly,finding no merit in this petition, the same is hereby dismissed. 4.2.2009. (Jaswant Singh) joshi Judge