Civil Revision No.3742 of 2006 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.3742 of 2006(O&M) Decided on : July 02, 2009 Sewaji and others ... Petitioners VERSUS Tarsem Singh Lally and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Ashish Aggarwal, Advocate for the petitioners. Mr.G.S.Gill, Advocate for respondent No.1. A.N.JINDAL, J.- The extraordinary supervisory powers of this Court have been invoked under Article 227 of the Constitution of India by filing the present revision petition against the order dated 27.4.2006 passed by Additional Civil Judge (Junior Division), Karnal, dismissing the application for amendment of the written statement. Brief background of the case is that the plaintiff – respondent No.1 Tarsem Singh Lally filed a suit for possession by way of specific performance, pleading that defendant No.2 to 4 and 8 were the owners of the land measuring 14 Kanals 9 Marlas and defendants No.1 to 7 were having the share in the said property as per the ratio mentioned in the plaint. Besides, defendant No.1 was also the prospective vendee of the land measuring 2 Kanal 18 Marlas i.e, 58/347 share of land measurng 17 Kanal 7 Marlas. Similarly, defendant No.9 M/s Maya Spinning Mills also owned Civil Revision No.3742 of 2006 [ 2 ] land measuring 7 Kanal 8 Marlas comprised of Khasra No.34/1 (2-8) along with the building thereon. The plaintiff also alleged that M/s Maya Spinning Mills is a partnership firm comprising of partners i.e, defendants No.1 and 2 and their mother Smt.Krishna Dulari. He further alleged that defendant No.1 to 7 along with Smt.Krishna Dulari entered into an agreement to sell the above said property including land 24 Kanals 15 Marlas for a sale consideration of Rs.90,99,000/- in favour of the plaintiff vide agreement to sell dated 15.3.2002 and the defendants received Rs.51 lacs as earnest money and as per terms of the said agreement. Out of Rs.51 lacs, aforesaid, defendants received a sum of Rs.5 lacs vide agreement dated 7.11.2001 entered into between the parties and prior to the above said agreement relating to the land measuring 21 Kanals 17 Marlas for a consideration of Rs.80,25,000/-, whereas, the remaining amount of earnest money to the tune of Rs.46 lacs was received by the above-said defendant on 15.3.2002. The plaintiff in his suit further pleaded that the defendants had admitted the factum of execution of the agreement and also that the land of defendant No.9 M/s Maya Spinning Mills was agreed to be sold for a sum of Rs.50 lacs including the cost of the land, which was at the rate of Rs.617/- per square yard and so far as the land standing in the name of other defendants individually is concerned, the same was agreed to be sold at the rate of Rs.617/- per square yard. The present suit was filed on 10.6.2003 and after the death of Kulbushan, one of the partners. Now, defendants No.1,4 and 6, namely; Sewa Ji, Kuldeep and Smt.Kiran moved an application for amendment of Civil Revision No.3742 of 2006 [ 3 ] the written statement for withdrawal of the earlier admissions, wherein, they had admitted that M/s Maya Spinning Mills was dissolved on 1.4.1999 and, thereafter, it became proprietorship firm, managed by Kulbhushan and Krishna Dulari was the only share holder in M/s Maya Spinning Mills. The Trial Court dismissed the application on the following grounds:- (1) The trial had already commenced and the case was fixed for evidence of the plaintiff, so as also, the application for amendment has been filed just after the death of Kulbhushan, as an after-thought, as a device to prolong the case; (2) The factum with regard to the nature of the firm was within the knowledge of the defendants and, now after the pendency of the suit for such a long time, it does not lie in their mouth to say that it was a subsequent event, because agreement between the parties took place on 15.3.2002 and the suit was filed on 10.6.2003. The written statement was filed by the defendants with categorical averments. Subsequently, such admissions cannot be allowed to be withdrawn while merely terming the same as a result of the negligence of the counsel. Arguments heard. Record perused. As a matter of fact, it is a suit for specific performance on the basis of the contract and the petitioners – defendants have nowhere pleaded in the written statement that they are not the partners of M/s Maya Spinning Mills. Assuming without admitting that the said firm had been dissolved in the year 1999, then the petitioners – defendants would not have represented at the time of agreement that they are partners of the said firm and they would not have made such vital admission in the written statement. After Civil Revision No.3742 of 2006 [ 4 ] the filing of the written statement, the issues were framed and at that time also, no such objection was raised. It was only after the death of Kulbhushan that they came forward to apply for the amendment. The alleged dissolution deed appears to be a paper transaction as no document has been produced on record in order to establish if the said dissolution deed was ever acted upon. The defendants kept sleeping over this representation for at least three years and never raised any such objection. Now, they cannot come to contend that they were not the partners in the said Mill. In any case, while examining the matter from another angle, the said dissolution deed may be an arrangement between the partners, inter-se, but that does not deprive the plaintiff – respondent No.1 of his rights to raise a claim against them and also not absolve them of their liability of the agreement, over which they signed being the partners. It may further be observed that the Apex Court in case Vidyabai and others vs. Padmalatha and another, 20009(1) RCR (Civil) 763, wherein, it was observed as under:- “7. By the 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.” Civil Revision No.3742 of 2006 [ 5 ] It is Couched in a mandatory form. The Court's jurisdiction to allow such an application is taken away unless the conditions precedent thereto 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.” This provision appears to have been inserted in the Code to snatch the weapon from the hands of the parties of moving unnecessary applications for causing unnecessary delay in disposal of the trial, thereby, dragging the litigation for years together. The proviso speaks for itself that as a general rule, no amendment could be allowed, after the issues are framed and the case is fixed for evidence. However, an exception to the general rule has been provided that if the party with due diligence had no knowledge of such fact, sought to be brought on record by way of amendment, then the Court in its discretion could allow the same. In the case in hand, the inadvertence of the defendants – petitioners cannot be inferred at all, rather, they had been pursuing the case being the partners of the Firm. As such, this also cannot be said to be an inadvertent admission, which could be allowed to be withdrawn. Resultantly, while refusing to invoke the extraordinary inherent powers of this court under Article 227 of the Constitution of India, this petition is dismissed. July 02, 2009 ( A.N.JINDAL ) `gian' JUDGE