40 0 1 Civil Revision No670 of 2010 1m 1 24r INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision N3670 of 2010 1 t Date May2011 JagdishChander eePetitioner n l Versus 0 VijayPal and others 0 2espondents t5 CORAM HONBLE MR JUSTICE RAJIVE BHALLA Z Present MrAhunger Advocate 1 2 for the petitioner L Mr IVKSajjanAdvocate for the respondents Z RAJIVE BHALLA J CQ The petitioner an order dated 122010 7 Z passedbythe Civil Judge Junior DivisionlAbohar dismissing 11 an appiicationfor amendment of his writtenstatement VijayPal respondentnl filed a suit for possessionby way of specificperformanceof an agreementto sell dated 17052004 and also challenged a sale deed dated 0462004 executed by respondentno2 in favour of the petitionerand proformarespondentno The peoner and proforma respondentn3 appearedbefore the triai court and fiied a detailed written statement pieadingthat theywere not aware of Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 41 0 2e6 Civil Revision No670 of 2010 2e 1 the allegedagreementto sell executed in favour of no1 Duringhis evidence the petitionerproveda prior to sell dated 31 72003 executed by no2 in favour of the petitioners brotherGanpatRai However as the agreementto sell was not pleadedin the written 1 statement the petitionerand respondentno filed an 0 for amendmentof the writtenstatement to pleadthis 0 0 prior to sell The petitioner averred that 0 no2executed this agreementto sell in favour of the petitioners brotherGanpatRai with Iiberty to getthe sale deed executed In Z favour of a person of his choice GanpatRain therefore gotthe sale deed executed in favour of the petitioner Q It is arguedthat as the prioragreementto sell is C germaneto the petitioners defence to the issue in hand and as Z it has aireadybeen Ied into evidence as Exl the petitioner 0 should be allowedto amend his writtenstatement V7 Z Vide order dated 125Ol 0 the Civil Judge Junior Q DivisionlAbohar dismissed the byholdingthat as the agreementExOl was Ied into evidence on 2092009 the petitioner was aware of the agreementto sell and therefore he could not be allowed to amend his written statement at this stage Counsel for the petitioner submits that the agreement to sell has alreadybeen Ied into evidence as ExDl This prior agreementto sell IS a germane to and has a significantbearing Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 42 11 C 0 r Civil Revision No670 of 2010 3 t 1 on the petitionersdefence4n amendment of a written statement stands on a different footingfrom amendment of a plaintThe rejectionof the prayer for amendment has caused serious prejudice to the petitioner and his defence Counsel for the on the other hand 1 submits that as the petitioner was aware of the agreementto C sellt is further arguedthat as the trial has commenced and 0 C0 evidence has been recorded the petitioner cannot be allowed to I C5 amend his written statement It IS also submitted that the amendment would in essence alter the nature of the Z petitioners defence from one of a bonafide purchaseto one of r a prioragreementto sell It is prayedthat as the impugned order IS neitherperverse nor arbitrary and does not disclose any error of the revision should be dismissed Z have heard counsel for the partiesand perusedthe OO order V Z Amendment of pleadingshas received considerable judicialattention and it has been held that amendment of a written statement stands on different footing from amendment of a plaint The generalparametersthat govern consideration of for amendments of pleadingshave been succinctlyset out in a judgmentof the Honble SupremeCourt reportedas RevajeetuBuilders 8 Developers V 8t Sons 8 Others A relevantextract from the judgment reads as followS Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document a P 43 0 Civil Revision No670 of 2010 4 e 1 67 On criticallyanalyzingboth the Englishand Indian cases some basic principlesemerge which oughtto be taken into consideration while allowing or rejecting the for amendment m 11 Whether the amendment soughtIS 0 for proper and eHective 0 C40 of the case2 0 21 Whether the for amendment is bona fide or mala fide2 Z l31The amendment should not cause such prejudiceto the other side which L cannot be adequately 117 termsofmoney Z 41 Refusingamendment would in fact CO Iead to injusticeor Iead to multiple 7 Z Qm 51 Whether the proposedamendment or changesthe nature and character of the case2 and 61 As a generalrule the court should decline amendmentsif a fresh suit on the amended claims would be barred by Iimitation on the date of Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 44 0 CivilRevision No670 of 2010 5 1 Delayand Iack of due diligence are factors VVherehowever the amendmentof pleadingsis essential for a just of the pendingIis delay or Iack of due exceptwhere it is malafide or culpableshould be 1 Q Thus if the amendmentsoughtis to a Just 0 O of the pendingIis rejection of such an amendment would Ieadto injustice 0 I The purchased the propertyin disputebyway 4t Z of a sale deed dated175006 Respondent nol filed a suit t for specific of an to seil dated L 172004 executed by no2 The I t0 Ied Ex Dl a pnor to sell dated Z 31 72003 executed by no2 in favour of the m petitioners brotherGanpatRai intoevidence and thereafterfiled A7 Z an for amendment of the written statement to Il a pleawith respectto the agreementto sell The trial court dismissed the on the groundthat as the had prior of the agreementhis failure to a pleain his writtenstatement shows the lack of due diligence was also held that the prayer for amendment would negatethe objectionraised bythe petitioner that the prior agreementIed into evidence is beyondpleadings The trial c0Ul1 in my considered opinion failed to Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 45 0e1 Civil Revision N3670 of 2010 6m 1 consider whether the amendment is necessary for a just proper and effective of the case and neither did it consider whether rejectionof the would perpetuate any injusticeTheproposedamendmentis based upon a prior to sell which has alreadybeen Ied into evidence i Denial of the prayer for amendment in my considered opinion C would be unjustas it would deprivethe petitioner of a significant 0 0 defence and preventa proper and effective of the I 0 caseIn its entiretyThe fact that the was belated or was filed after the document Exl was Ied into evidence Z should invite costs Deprivingthe petitionerof his 2 prayerfor an amendment would not advance the cause of e I justicebut would perpetuateinjusticeAs stated bycounsel for t the petitionerthe petitioner does not want to Iead any further Z r evidence on the basis of amendment CQ et In view of what has been stated hereinabove the mvo Z revision IS allowed the order dated 1052010 is set aside and m the for amendment is allowed subjecthowever to payment of Rs10000 as costs Pell May 2011 1RAJIVEBHALLAI nt JUDGE Rani Anita 2013.01.21 15: 59 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document