1 26 S.B. CIVIL WRIT PETITION NO.2903/2008 Nemichand Vs. Sahabram & Ors. Date of Order :: 6th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Ravi Bhansali, for the petitioner BY THE COURT: … Heard learned counsel for the petitioner. This writ petition has been preferred in challenge to the order dated 26.04.2008 (Annex.5) as passed by the Additional District Judge No. 2. Bikaner in Civil Suit No. 93/1996 rejecting an application moved by the petitioner under Order VI Rule 17 read with Order XXII Rule 4(2) of the Code of Civil Procedure (CPC). From the material as placed on record and as shown during the course of arguments by the learned counsel, it appears that in the suit aforesaid, filed for specific performance of agreement for sale of agricultural land, the present petitioner Shri Nemichand was substituted as defendant as back as on 06.11.2004 upon the demise of the original defendant Shri Keval Ram, father of the petitioner. 2 It appears further that the plaintiff concluded his evidence on 10.02.2005; and the learned Trial Court proceeded to close down the evidence of the petitioner on 19.05.2005 for no witnesses having been produced. The petitioner preferred a writ petition to this Court (CWP No. 3886/2005) and in view of the orders passed in the said writ petition, further proceedings in the suit remained stayed for some time. Ultimately, the said writ petition preferred by the present petitioner was allowed by this Court on 11.09.2006 with the following order:- “Heard learned counsel for the parties. The petitioner is permitted to allow one more chance for production of his evidence and cross examination on cost of Rs.5,000/-. In view of the above, the petition stands disposed of.” The copies of the order sheets of the learned Trial Court in the present suit as placed for perusal by learned counsel for the petitioner show that the aforesaid order passed by this Court on 11.09.2006 permitting the petitioner one more chance for production of the evidence and cross examination on the costs of Rs.5,000/-, was not immediately brought to the notice of the Trial Court; and on 25.09.2006, 09.11.2006, 11.01.2007, 13.03.2007, 21.04.2007 and 05.07.2007, the 3 proceedings in the suit were adjourned only with the noting that there was a stay operating. Be that as it may, the proceedings in the suit were taken up on 08.08.2007 when the counsel for the plaintiff produced a copy of the aforesaid order dated 11.09.2006 before the Trial Court; but even thereafter, the petitioner took time to make payment of costs of Rs.5,000/- and made such payment only on 01.09.2007. Thereafter, the petitioner filed an application under Order VIII Rule 1-A (3) CPC on 14.09.2007 that was heard on 11.12.2007 and the matter was placed for orders on 12.12.2007. The order-sheets drawn thereafter have not been shown but it appears that another application (Annex.3), subject-matter of this writ petition, came to be moved by the petitioner on 20.03.2008 under Order VI Rule 17 read with Order XXII Rule 4(2) CPC seeking to amend the written statement by way of additional pleadings; and yet another application was moved by the petitioner under Order VIII Rule 1-A (3) CPC seeking to produce certain document. By way of the proposed amendment, the petitioner, arrayed as defendant No. 1/3 in this suit, wanted to take the pleadings that the land in question came to the defendant Keval Ram only by way of succession and was not of his sole ownership; and under the decree dated 30.12.1999 as passed by the Revenue Court in terms of compromise, the land was 4 ordered to be divided and recorded accordingly. The petitioner would submit that the land in question was declared to be of his ownership and the decree to that effect has become final. It was also suggested that the defendant Keval Ram made an application in the year 1988 to the Colonisation Commissioner for permission to sell the land in question whereupon orders were issued to the Colonisation Tehsildar for appropriate proceedings; and that the defendant Keval Ram was always ready and willing to sell the land. The application for amendment was opposed on behalf of the plaintiff with the submissions that the petitioner has been substituted as defendant only as a legal representative and he was not entitled to take any pleadings contrary to the pleadings of the original defendant Keval Ram. While dealing with the application aforesaid, in its impugned order dated 26.04.2008 (Annex.5) the learned Trial Court has pointed out, inter alia, that at the stage of substitution of legal representatives, the petitioner filed a reply stating that his father had executed a will in his favour in relation to the property in question and produced a copy of the will before the Court. The learned Trial Court has further pointed out that on 30.04.2005 the petitioner Nemichand filed his affidavit-in-evidence but did not state himself to be a co- owner of the suit property with the original defendant Keval 5 Ram. While finding the stand now sought to be taken by the petitioner being not in conformity with the stand taken by the original defendant, the learned Trial Court has rejected the application for amendment as filed by the petitioner but with the observations that for his individual rights, if any, the petitioner is free to adopt separate legal proceedings. The learned Trial Court has also rejected the other application moved under Order VIII Rule 1-A CPC but that part of the order is not the subject-matter of this writ petition. The learned Trial Court has also pointed out the significant aspects of the matter relating to the order passed by this Court in the aforesaid writ petition (CWP No. 3886/2005 - wrongly stated as CWP No. 3556/2005 in the impugned order) that as back as on 11.09.2006, the petitioner was extended one more opportunity to lead evidence but he was simply avoiding to do so while moving different applications. The learned Trial Court has rejected the applications aforesaid, each with costs of Rs.2,500/-. Assailing the order dated 26.04.2008 (Annex.5) in rejection of the application under Order VI Rule 17 read with Order XXII Rule 4(2) CPC, learned counsel for the petitioner submits that the petitioner seeks to bring the correct factual position before the Court that remains in conformity with the statements of the defendant Keval Ram as already recorded in 6 these proceedings. Learned counsel submits that the plea as sought to be taken by the petitioner is not in conflict with the plea taken by the original defendant but is only explanatory and clarificatory in nature; and the learned Trial Court has disallowed the prayer made by the petitioner on entirely irrelevant considerations. Learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Sumtibai & ors. Vs. Paras Finance Co.: AIR 2007 SC 3166. The submissions made on behalf of the petitioner against the impugned order dated 26.04.2008 (Annex.5) are not convincing. In the first place, it is required to be pointed out that any prayer for amendment of pleadings is examined on one of the relevant considerations of the intention of the party applying. The petitioner has been substituted as legal representative of the deceased defendant as back as on 06.11.2004 and if at all such proposition as suggested in the application Annexure-3 was to be canvassed, the petitioner had ample opportunities to do so at the initial stage of his entry into this litigation as legal representative of the deceased defendant. The petitioner did repeatedly move applications after applications on different propositions as is apparent from the order-sheets shown by the learned counsel but the application Annexure-3 came to be moved by the petitioner only on 20.03.2008. Significant 7 aspect of the matter remains that even after his evidence was closed by the Trial Court, this Court granted indulgence to the petitioner to lead evidence on payment of Rs.5,000/-; but, as noticed above, the petitioner did not bring the order passed by this Court on 11.09.2006 to the notice of the Trial Court nor made payment of costs for about a year. Even thereafter, the present application for amendment came to be filed much later, only on 20.03.2008. Looking to the overall facts and circumstances of the case and the conduct of the petitioner, the observations of the Trial Court cannot be said to be unjustified or unwarranted that the petitioner has only been protracting the matter. Even otherwise, there does not appear any reason to allow the amendment as suggested by the petitioner. The learned Trial Court has pointed out about an entirely different stand taken at the stage of substitution of legal representatives of the deceased defendant when the petitioner suggested a bequeath in his favour. Even in his affidavit-in-evidence as filed on 30.04.2005, the petitioner has not stated the fact of co- ownership with the original defendant. The submission that the petitioner only seeks to explain or clarify the stand of the original defendant, to say the least, remains baseless because no such clarification is needed particularly when it is noticed that the original defendant had not only filed his written 8 statement but also made oral statement before the Court that remains a part of the record. Having examined the matter in its totality, this Court is clearly of opinion that the decision in Sumtibai's case (supra) has no application to the present case for fundamental difference of facts and the surrounding circumstances. In the said case of Sumtibai, the Hon'ble Supreme Court has noticed that the registered sale deed regarding the land in dispute, subject matter of the suit for specific performance, showed that the purchaser under the said deed was not the defendant alone but his sons were co-owners. In such a fact situation, the Hon'ble Supreme Court observed that the sons of deceased defendant, who were found to be the co-owners of the property in dispute, cannot be dubbed as busybodies or interlopers; and their right to take defence by way of filing additional written statement was recognised. Contrary to the fundamental fact as found in Sumtibai's case that the substituted defendant had been carrying the right of co- ownership with the deceased defendant, in the present case, as noticed above, the proposition of co-ownership of the petitioner does not find cogent corroboration on record. Even in the affidavit-in-evidence filed by the petitioner as late as on 30.04.2005 as shown by the learned counsel for the petitioner, not a whisper is available about the plea of co-ownership. 9 In the face of the position of the record as noticed above, a late attempt on the part of the petitioner to improve upon, rather alter, the defence could only have been rejected with costs. The learned Trial Court has rightly done so. There is no force in this writ petition and the same is, therefore, dismissed summarily. (DINESH MAHESHWARI), J. s.soni