Sarmukh Singh Vs.
Baldev Singh  INSC 1303 (4 August 2008)
JURISDICTION CIVIL APPEAL NO.4966 OF 2008 (Arising out of S.L.P. (C)
No.10975/2007) Sarmukh Singh ...Appellant Versus Baldev Singh ...Respondent
With C.A. No.4967/2008(@ SLP(C) No.11156/2007) O R D E R Leave granted.
These appeals are directed
against the judgment and order dated 2.4.2007 passed by a learned Single Judge
of the High Court of Punjab and Haryana at Chandigarh whereby and whereunder
the Civil Revisions filed by the appellant herein questioning the validity of
the orders dated 9.5.2006 and 30.5.2006 passed by the Civil Judge(Junior
Division) Ropar were dismissed.
The basic fact of the
matter is not in dispute. Appellant herein had filed a suit in the Court of
Civil Judge,Sr.Divn, Ropar, inter alia, for grant of a decree for mandatory
injunction directing the defendant-respondent to demolish and remove the
structure raised over the land in suit which admeasured 18 ft. x 28 ft.
Appellant claimed to
be the purchaser of the said suit land from one Har Kaur daughter of Nand
A written statement
was filed in the said suit by the respondent, wherein, inter-alia, it was
accepted that Har Kaur was a member of the family and she could make -1-
transfer to the
extent of her share. Genealogical table of the family had also been disclosed
in the written statement.
filed an application for amendment of the plaint in terms whereof a decree for
recovery of possession of the suit property was also prayed for. The said
application for amendment was allowed.
thereafter, filed an application for amendment of the written statement
purported to be pursuant to the leave granted in his favour by the learned
trial Judge, while allowing the application for amendment of plaint filed by
the appellant. In the said application for amendment of written statement,
however, the respondent did not confine the application to the extent of the
averments made in the amended plaint.
The respondent not
only made new averments but also substituted the genealogy as disclosed in the
first written statement in the amended written statement. It had,
inter-alia,furthermore denied and disputed that the said Har Kaur could have
alienated any property in favour of the plaintiff.
The civil revision
application filed thereagainst,as noticed hereinbefore, was dismissed by the
-2- Mr. K.B. Sinha,
learned senior counsel appearing on behalf of the appellant would submit that
the purported application for amendment of the written statement as allowed by
the learned trial Judge and affirmed by the High Court, on the premise that the
respondents were entitled to do so as the plaintiff himself amended the plaint
is wholly untenable in law. It was, furthermore, submitted that, in any event,
the defendants could not have substituted one genealogy by the other as a
result whereof the source of title of the plaintiff could stand denied and
disputed. Learned senior counsel, however, furthermore contends that having
regard to the proviso appended to Order VI Rule 17 of the Code of Civil Procedure,
the said application for amendment of the written statement could not have been
allowed as hearing of the suit had commenced.
We agree with the
learned senior counsel that the application for amendment of written statement
could not be treated to be one as additional written statement within the
meaning of Order VIII Rule 9 of the Code of Civil Procedure but in our opinion
even if the said application is treated to be one filed in terms of Order VI
Rule 17 of the Code of Civil Procedure,the same would not mean that by reason
thereof any admission made therein is sought to be withdrawn. If a mistake has
been committed by the defendants in their original written statement, they were
entitled to file an application for amendment thereof.
It is, furthermore,well
known that an application for amendment of the written statement is to be
granted more liberally than an application for amendment of the plaint.
-3- We, at this
stage, are not concerned as regards the correctness or otherwise of one
genealogical table of the family or the other. The parties are required to
prove their respective cases before the learned trial Judge and in that view of
the matter, we are of the opinion that no case has been made out for our
interference with the impugned judgment at this stage, particularly, when
plaintiff-appellant has already filed replication to the said amended written
statement in terms of the order passed by the learned trial Judge himself.
So far as
applicability of the proviso appended to Order VI Rule 17 is concerned, in our
opinion, the said contention is misplaced as the original suit was filed in the
year 2001, whereas the amendment has come into force in 2002. This aspect of
the matter is covered by a decision of this Court in State Bank of With the
aforementioned observations, the appeals are dismissed. No costs.
Delhi, August 4, 2008.