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ikbal Begum Vs. Akhtar Ali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1289 of 1971
Judge
Reported inAIR1973P& H478
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
Appellantikbal Begum
RespondentAkhtar Ali
Cases ReferredJaldu Anantha Raghurama Arya v. Jaldu Bapanna Rao
Excerpt:
.....if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - she had more than 30 standard acres of land and the plaintiff told her that there was every chance that some of their land might be declared surplus and in order to avoid that, it would be better if certain land was shown as sold to him and after the surplus dispute was over, the plaintiff would return the said land to her and with that end in view the bogus sale-deed was got effected by him from her......petition against the order of the trial judge rejecting her application for the amendment of her written statement.2. akhtar ali brought a suit against shrimati iqbal begum for joint possession of the land in suit. it was stated in the plaint that the defendant had sold agricultural land, measuring 144 bighas 19 biswas to him for rs. 5,000/- by a registered deed on 10th may, 1960. when the plaintiff was going to get possession of the said land, he found that the area was less by 21 bighas and 7 biswas. that necessitated the filing of the present suit.3. the suit was contested by the defendant, who denied the allegations made by the plaintiff and pleaded that the latter was the mukhtiar-i-am of the former, who was pardanashin lady and he purchased the land with full knowledge of what he.....
Judgment:
ORDER

1. This is a defendant's revision petition against the order of the Trial Judge rejecting her application for the amendment of her written statement.

2. Akhtar Ali brought a suit against Shrimati Iqbal Begum for joint possession of the land in suit. It was stated in the plaint that the defendant had sold agricultural land, measuring 144 Bighas 19 Biswas to him for Rs. 5,000/- by a registered deed on 10th May, 1960. When the plaintiff was going to get possession of the said land, he found that the area was less by 21 Bighas and 7 Biswas. That necessitated the filing of the present suit.

3. The suit was contested by the defendant, who denied the allegations made by the plaintiff and pleaded that the latter was the Mukhtiar-i-am of the former, who was Pardanashin lady and he purchased the land with full knowledge of what he was buying. There was no deficiency in the area.

4. During the pendency of the suit, when the plaintiff had finished his evidence and the defendant was lead hers, she, on 30th August, 1971, filed on application under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend her written statement. She stated that she was a Pardanashin lady and due to inadvertence she could not take a specific plea that the transaction relied on by the plaintiff was sham one, as no consideration passed between the parties. The plaintiff was the Mukhtiar-i-am of the defendant and wanted to grab her land. She was under his undue influence. She had more than 30 standard acres of land and the plaintiff told her that there was every chance that some of their land might be declared surplus and in order to avoid that, it would be better if certain land was shown as sold to him and after the surplus dispute was over, the plaintiff would return the said land to her and with that end in view the bogus sale-deed was got effected by him from her. The land, which was alleged to be sold, was worth much more than Rs. 5,000/- at the time of sale. By means of this application, she wanted to make this amendment in the written statement.

5. This application was opposed by the plaintiff, according to whom, the proposed amendment would change the entire nature of the defence already taken by her.

6. After hearing the arguments, this application was rejected by the trial Judge and against that order the defendant had come here in revision.

7. Learned counsel for the petitioner submitted that the learned Judge was entirely wrong in disallowing this application on the ground that the amendment sought to be made was barred under the provisions of Order 6, Rule 17, Code of Civil Procedure inasmuch as 'it would mean a different or additional approach to the facts already admitted and this would amount to changing the nature of defence.' According to the learned counsel, amendments have generally be allowed and even if by the proposed amendment, a suit of one character is changed into another one, that would be no ground for refusing the said amendment. Reliance for this submission was placed by the learned counsel on an unreported decision given by me in Civil Revision No. 1226 of 1970 (Balkishan v. Municipal Committee, Panipat) decided on 1-11-1971 (Punj).

8. After hearing the counsel for the petitioner, I find that there is no merit in this contention. It is difficult to accept the broad proposition mentioned by the learned counsel that in every case the amendment of pleadings has to be allowed. There are numerous judicial decisions in support of the view that where the plaintiff's suit would be wholly displaced by the proposed amendment or where the amendment would introduce a totally different, new and inconsistent case, leave to amend the plaint or the written statement should be refused. Reference in this connection may be made to March, Shew Mya v. Maung Mo Hnuang, AIR 1922 PC 249, Jaldu Anantha Raghurama Arya v. Jaldu Bapanna Rao, AIR 1959 Andh Pra 448, and also to the Mulla's code of Civil Procedure, 13th Edition, Volume I, Pages 729 and 731, where a number of authorities have been cited for this proposition. The present is a case of that kind. In the original written statement, the defendant had admitted the transaction, but her position was that the plaintiff knew what he was purchasing and there was no deficiency in the area. In the proposed amendment, she wanted to take a complete somersault on the stand originally taken by her and wished to plead that the entire transaction was a bogus one and no consideration passed between the parties inasmuch as she was duped by the plaintiff, who was her Mukhtiar-i-am.

9. I would, therefore, reject this petition, but make no order as to costs.

Revision dismissed.


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