Civil Revision No.1385 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1385 of 2010 (O&M) Date of decision: 29.06.2010 Jorawar Singh @ Jawahar Singh ....Petitioner Versus Navjot Singh and others ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vijay Lath, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 23.11.2009, passed by the learned Additional District Judge (Adhoc), Fast Track Court, Ropar, vide which the application moved by the petitioner for amendment of written statement in appeal, was dismissed. Suit was filed by the plaintiffs claiming, that plaintiffs No.1 and 2 were owners in joint possession of 6 kanals 4 marlas of land, whereas plaintiffs No.3 and 4 were owners of 5 kanals 4 marlas of land. The decree passed in civil suit No.207 dated 5.6.1991 was challenged being collusive, illegal, null and void and had no effect on the rights of the plaintiffs. The suit property was said to be coparcenary and ancestral in nature, in which the plaintiffs claimed right by birth. The suit was contested. One of the issues framed was, whether the suit was not maintainable. Onus of this issue was on the defendant/petitioner. Civil Revision No.1385 of 2010 (O&M) -2- Finding recorded on issue No.2 reads as under: - “The onus to prove this is upon the defendants. The defendant has not specifically pleaded in the written statement as to in which form the plaintiff should have filed the present suit. The plaintiffs have filed the present suit on the basis that the suit land is ancestral coparcenary property and they have right by birth to inherit the same. So, the suit is perfectly maintainable. Accordingly this issue is decided against the defendants and in favour of the plaintiffs.” In appeal, in order to overcome this finding, the petitioner moved an application for amendment of the written statement to raise following preliminary objections and amend para No.5 as under: - “Preliminary objections 5. That simple suit for declaration is not maintainable when the suit land admittedly was owned and possessed by the defendant No.1 Zorawar Singh as the plaintiffs Navjot Singh etc. are not in possession of the suit land and they were supposed to file suit for possession, hence, the suit is not maintainable and is liable to be dismissed. 6. That the suit of the plaintiffs is bad for non-joinder of the necessary parties as now the suit land is in possession of Charanjit Kaur and Sukhram Singh purchaser of the suit land as the possession of the suit land was delivered to them by Zorawar Singh as Zorawar Singh has got the land in question by way of decree suffered by Pritam Singh in favour of Zorawar Singh, hence the suit is not maintainable and the same is liable to be dismissed on this ground also. 7. That the suit has not been properly valued for the purpose of court fees and jurisdiction as the plaintiffs have challenged the sale deed and for that purpose they have also filed cross objection which is pending in this Hon'ble Civil Revision No.1385 of 2010 (O&M) -3- Court, hence, the suit is not maintainable and the same is liable to be dismissed on this score also.” (b) That para-5 of the written statement requires to be amended as under: - “5. That para No.5 of the plaint is incorrect, hence, specifically denied. The suit property was owned and possessed by the defendant No.1 and the plaintiffs or other defendants have no share in the suit property. Since the day the father of the defendant No.1 i.e. Pritam Singh suffered a decree dated 14.8.91 in favour of the defendant No.1, the defendant No.1 was owner and in possession of the suit property. The said decree of the civil court is legal and valid in all respect and is binding upon the plaintiffs and other defendants. It is incorrect that the suit property is coparcenary and ancestral. The plaintiffs have no any right in the suit property. It is also necessary to mention here that the answering defendant sold the suit property to Charanjit Kaur and Sukhram Singh and also delivered the possession of the same to them, thus the suit is bad for non-joinder of necessary party.” The learned appellate Court dismissed the application by observing, that defendant/petitioner had already taken all these pleas, which now they wanted to take by way of amendment of written statement. The learned appellate Court held, that in the written statement it was pleaded that suit was not maintainable in present form, and further that the plaintiffs had no locus standi to file the present suit. Plea was also taken, that suit was not properly valued for the purposes of court fee and jurisdiction. The learned appellate Court held, that there Civil Revision No.1385 of 2010 (O&M) -4- was no occasion to seek amendment of the written statement, as it was unnecessary. Learned counsel for the petitioner vehemently contended, that the amendment was necessary for just and proper adjudication of the case and was legal in nature, therefore, should have been allowed. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. As observed by the learned appellate Court, pleas now sought to be raised by way of amendment were already taken in the written statement. The petitioner by way of present amendment, therefore, cannot be allowed fill in lacuna in the case. The order passed by the learned appellate Court does not suffer from any error of law or facts, which may call for any interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed. (Vinod K. Sharma) Judge June 29, 2010 R.S.