IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 738 of 2009 Date of Decision : August 27, 2009 Sukhvinder Singh .....Petitioner Versus Pritam Kaur and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Aman Arora, Advocate for the petitioner. Mr. Om Pal Sharma, Advocate for respondents No.1 and 2. T.P.S. MANN, J. The present revision has been filed by one of the plaintiffs and directed against the order dated 11.11.2008 passed by the learned Additional Civil Judge (Senior Division), Dera Bassi, whereby application filed by the legal representatives of defendant-Gurnam Singh for amendment of his written statement was allowed. Suit was filed by the petitioner and proforma respondents No.7 to 13 on 18.8.1997 for separate possession by way of partition to the extent of half share in the suit property which consisted of a house, and, for permanent injunction restraining the defendants from transferring, alienating or making any addition or alternation or changing the nature of the suit property by raising construction or otherwise. Upon appearance, defendant-Gurnam Singh filed his written Civil Revision No. 738 of 2009 -2- statement dated 13.1.1998, wherein he prayed for dismissal of the suit with costs. During the pendency of the suit, defendant-Gurnam Singh died and, accordingly, his legal representatives were brought on record. After their impleadment, those legal representatives filed an application dated 9.2.2006 (Annexure P5) praying therein that they may be allowed to file additional written statement so as to protect their personal rights in the suit property, which vested in them after the death of their predecessor-in-interest. The said application was, however, dismissed by the learned trial Court on 4.10.2007 (Annexure P6) on the ground that the applicants therein had stepped into the shoes of deceased- Gurnam Singh being his legal representatives and they had no personal capacity or right to file a separate written statement. They would have to pursue the suit itself on behalf of deceased-Gurnam Singh. Legal representatives of Gurnam Singh-defendant then submitted an application dated 14.12.2007 (Annexure P7) under Order VI Rule 17 of the Code of Civil Procedure for amendment of the written statement filed by Gurnam Singh-defendant so as to assert that the property in question was orally partitioned amongst the family members and the applicants had raised construction over the portion in their exclusive possession after the said family settlement and the plaintiff had no concern, whatsoever, with the property in question. This application was allowed by the learned trial Court vide impugned order dated 11.11.2008 on the ground that the proposed amendment would not change the nature of the case and the same was necessary for proper adjudication of the controversy between the parties. Moreover, Civil Revision No. 738 of 2009 -3- the plaintiffs could well be compensated by way of costs. Learned counsel for the petitioner submitted that the amendment sought by the legal representatives of Gurnam Singh- defendant was neither relevant nor proper for adjudication of the suit and lis between the parties. The suit was only for separate possession by way of partition and the Court was to adjudicate only on the issue of entitlement of separate possession to the extent of half share of the plaintiff. The factum of raising construction by the legal representatives of defendant-Gurnam Singh upon their own portion can be raised after passing of preliminary decree and before final decree when the property would be partitioned by metes and bounds. It is also submitted that the suit was pending adjudication since August 1997 and was at the stage of final arguments. On account of passing of the impugned order, the clock has been reversed by 11 years when the written statement was filed by defendant-Gurnam Singh. It is also submitted that the legal representatives of Gurnam Singh-defendant had earlier filed the application dated 9.2.2006 (Annexure P5) wherein they sought permission to file separate defence by way of their written statement. Said application was dismissed by the learned trial Court. The application under Order VI Rule 17 of the Code for a similar and incidental relief was, thus, not maintainable. Learned counsel for respondents No.1 and 2 submitted that the amendment sought was not to change the nature of the case. In fact, it was necessary for proper adjudication of the controversy between the parties. Civil Revision No. 738 of 2009 -4- In their application dated 9.2.2006 (Annexure P5), the legal representatives of defendant-Gurnam Singh sought permission to put separate defence by way of filing the written statement. This application was dismissed by the learned trial Court on 4.10.2007 by holding that the legal representatives had no personal capacity or right to file the separate written statement and the only right available to them was to pursue the suit on behalf of deceased-Gurnam Singh-their predecessor-in-interest. In case, the legal representatives of deceased- Gurnam Singh had any grievance against the declining of their application for putting separate defence by way of fresh written statement, they ought to have challenged the said order. Instead of doing so, they came up with the application dated 14.12.2007 (Annexure P7) under Order VI Rule 17 C.P.C. for amendment of the written statement filed by Gurnam Singh-defendant. In their application, the legal representatives did not mention anywhere that they had earlier filed an application for granting permission to put separate defence or that the said application stood dismissed by the learned trial Court. Instead, they started pleading that the amendment sought for by them would not change the nature of the case, rather, it would advance the cause of justice. A simultaneous reading of the application dated 9.2.2006 (Annexure P5) and application dated 14.12.2007 (Annexure P7) would reveal that the legal representatives of defendant-Gurnam Singh want to bring on record the factum of oral partition of the property in question. In his written statement dated 13.1.1998 (Annexure P2), defendant-Gurnam Singh had admitted the factum of joint possession of the parties in the suit property when he Civil Revision No. 738 of 2009 -5- stated that a portion of the suit property was given to Kehar Singh of which the plaintiffs were in possession. It is apparent that legal representatives of defendant-Gurnam Singh now want to wriggle out of the said admission and assert that the property in question was orally partitioned and all the legal representatives were in exclusive possession over the portion falling to their respective shares. Moreover, the amendment in question was neither relevant nor proper for adjudication of the suit and lis between the parties. In the event of the suit succeeding, a preliminary decree would be passed and before final decree, the property would be partitioned in the manner to be specified. At that stage, the factum of raising construction by the legal representatives of defendant-Gurnam Singh, can be considered. The suit was at the final stage of arguments when the amendment sought for by legal representatives of defendant-Gurnam Singh was allowed. It would result in the trial of the suit going back to the stage when defendant-Gurnam Singh had filed the written statement dated 13.1.1998. The issues would require re-casting and evidence may be led or the parties cross-examining the witnesses, who have already appeared before the trial Court. The suit has remained pending for more than 12 years and it cannot be said with certainty that consequent upon allowing of the amendment, the suit could be decided in the shortest possible time. Possibility cannot be ruled out that it may take another couple of years before the suit would be finally decided by the trial Court. Civil Revision No. 738 of 2009 -6- In view of the above, the impugned order passed by the trial Court in allowing the application under Order VI Rule 17 C.P.C. for amendment of the written statement of defendant-Gurnam Singh cannot be sustained. Resultantly, the revision is accepted, impugned order dated 11.11.2008 passed by Additional Civil Judge (Senior Division), Dera Bassi is set aside and the application under Order VI Rule 17 C.P.C. filed by the legal representatives of defendant-Gurnam Singh for amendment of the written statement is dismissed. ( T.P.S. MANN ) August 27, 2009 JUDGE satish Whether to be referred to the REPORTERS : YES / NO