# Smt. Kinder Jeet Kaur Revisionist v. Karamjeet Singh

- **Citation:** (2024) 4 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Case number:** Civil Revision No. 130 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kinder-jeet-kaur-revisionist-v-karamjeet-singh-51822
- **Pages:** 12

## Headnote

Civil Law - Code of Civil Procedure, 1908 -
Order VI Rule 17 - Section 115 - Civil
Revision Against Rejection of Amendment to
Written Statement- Specific Performance of
Agreement to Sell - Liberal Approach to
Amendments of Written Statement- Non-Joinder
of Parties - Fraud and Misrepresentation
Defense - The plaintiff-respondent, Karamjeet
Singh, a Non-Resident Indian, instituted O.S.
No. 203 of 2021 for specific performance of a
registered agreement to sell dated 30.11.2018,
executed by defendant-revisionists Nos. 3 and 4
(Jagtar Singh and Smt. Sukhraj Kaur) for
agricultural land (2.0305 hectares) in Village
Shekhupura, Tehsil Swar, District Rampur, for
Rs.78,52,000, with Rs.70 lakhs paid as earnest.
The suit also sought cancellation of gift deeds
dated 29.02.2020 executed by defendantrevisionists Nos. 3 and 4 in favor of defendantrevisionists Nos. 1 and 2 (Smt. Kinder Jeet Kaur,
wife of Jagtar Singh, and their minor son,
Gurudeep Singh Sandhu), and a permanent
injunction against further transfers. Defendantrevisionists Nos. 3 and 4, in their written
St.ment, alleged fraud by Balkar Singh and
associates,
claiming
the
agreement
was
misrepresented as a power of attorney for UK
immigration and farm management, executed
without consideration. They sought to amend
their written St.ment: (1) substituting "र्था" for
"िै" in paragraph 29 to clarify that Balkar Singh
managed their farming in the past, not
currently, and (2) adding paragraph 55(अ) to
plead non-joinder of Balkar Singh and others as
necessary parties due to their alleged role in the
fraud. The Civil Judge (Sr. DiVs), Rampur,
rejected
the
amendment
application
on
06.07.2022, citing the proviso to Order VI Rule
17 (post-trial commencement bar) and lack of
necessity to implead non-parties to the contract,
relying on Vidur Impex and Traders Pvt. Ltd. Vs
Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384.
Held: The revision was allowed, setting aside
the
trial
court's
order,
finding:
(1)
the
amendment to paragraph 29 was not a
withdrawal of admission but an elaboration
aligning with the defense of fraud, causing no
prejudice to the plaintiff, per St. of Bihar Vs
Modern Tent House, (2017) 8 SCC 567, and
Baldev Singh Vs Manohar Singh, (2006) 6 SCC
498; (2) the proviso to Order VI Rule 17 is not
inflexible, and amendments to written St.ments
are
judged
liberally,
even
post-trial
commencement, per Abdul Rehman Vs Mohd.
Ruldu, (2012) 11 SCC 341; (3) the addition of
paragraph 55(अ) raised a non-joinder plea
regarding parties allegedly involved in fraud,
distinguishable
from
Vidur
Impex,
which
involved
third-party
purchasers,
and
was
permissible as it supported the defense without
altering the suit's nature; (4) the trial court's
failure to apply liberal standards for written
Statementamendments constituted a failure to
exercise
jurisdiction,
warranting
revisional
interference under Section 115 CPC. The
amendment application was allowed, and the
suit's
proceedings
were
directed
to
be
expedited.

List of Cases cited:

## Text

_Characters 0–39,950 of 40,963. This is a partial read: ask again with offset=39950 for what follows._

46 INDIAN LAW REPORTS ALLAHABAD SERIES

5.
Criminal
Misc.
Bail
Application No.4282 of 2024 (Saroj Sonkar
v. State of U.P. and others)
----------
(2024) 4 ILRA 46
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 130 of 2022

Smt. Kinder Jeet Kaur ...Revisionist
Versus
Karamjeet Singh ...Opposite Party

Counsel for the Revisionist:
Smt. Archana Singh, Sri Shrreeprakash
Singh

Counsel for the Opposite Party:
Sri Virendra Kumar Gupta

Civil Law - Code of Civil Procedure, 1908 -
Order VI Rule 17 - Section 115 - Civil
Revision Against Rejection of Amendment to
Written Statement- Specific Performance of
Agreement to Sell - Liberal Approach to
Amendments of Written Statement- Non-Joinder
of Parties - Fraud and Misrepresentation
Defense - The plaintiff-respondent, Karamjeet
Singh, a Non-Resident Indian, instituted O.S.
No. 203 of 2021 for specific performance of a
registered agreement to sell dated 30.11.2018,
executed by defendant-revisionists Nos. 3 and 4
(Jagtar Singh and Smt. Sukhraj Kaur) for
agricultural land (2.0305 hectares) in Village
Shekhupura, Tehsil Swar, District Rampur, for
Rs.78,52,000, with Rs.70 lakhs paid as earnest.
The suit also sought cancellation of gift deeds
dated 29.02.2020 executed by defendantrevisionists Nos. 3 and 4 in favor of defendantrevisionists Nos. 1 and 2 (Smt. Kinder Jeet Kaur,
wife of Jagtar Singh, and their minor son,
Gurudeep Singh Sandhu), and a permanent
injunction against further transfers. Defendantrevisionists Nos. 3 and 4, in their written
St.ment, alleged fraud by Balkar Singh and
associates,
claiming
the
agreement
was
misrepresented as a power of attorney for UK
immigration and farm management, executed
without consideration. They sought to amend
their written St.ment: (1) substituting "र्था" for
"िै" in paragraph 29 to clarify that Balkar Singh
managed their farming in the past, not
currently, and (2) adding paragraph 55(अ) to
plead non-joinder of Balkar Singh and others as
necessary parties due to their alleged role in the
fraud. The Civil Judge (Sr. DiVs), Rampur,
rejected
the
amendment
application
on
06.07.2022, citing the proviso to Order VI Rule
17 (post-trial commencement bar) and lack of
necessity to implead non-parties to the contract,
relying on Vidur Impex and Traders Pvt. Ltd. Vs
Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384.
Held: The revision was allowed, setting aside
the
trial
court's
order,
finding:
(1)
the
amendment to paragraph 29 was not a
withdrawal of admission but an elaboration
aligning with the defense of fraud, causing no
prejudice to the plaintiff, per St. of Bihar Vs
Modern Tent House, (2017) 8 SCC 567, and
Baldev Singh Vs Manohar Singh, (2006) 6 SCC
498; (2) the proviso to Order VI Rule 17 is not
inflexible, and amendments to written St.ments
are
judged
liberally,
even
post-trial
commencement, per Abdul Rehman Vs Mohd.
Ruldu, (2012) 11 SCC 341; (3) the addition of
paragraph 55(अ) raised a non-joinder plea
regarding parties allegedly involved in fraud,
distinguishable
from
Vidur
Impex,
which
involved
third-party
purchasers,
and
was
permissible as it supported the defense without
altering the suit's nature; (4) the trial court's
failure to apply liberal standards for written
Statementamendments constituted a failure to
exercise
jurisdiction,
warranting
revisional
interference under Section 115 CPC. The
amendment application was allowed, and the
suit's
proceedings
were
directed
to
be
expedited.

List of Cases cited:

1. Vidur Impex and Traders Pvt. Ltd. Vs Tosh
Apartments Pvt. Ltd., (2012) 8 SCC 384

2. St. of Bihar Vs Modern Tent House, (2017) 8
SCC 567
4 All. Smt. Kinder Jeet Kaur Vs. Karamjeet Singh
47
3. Baldev Singh Vs Manohar Singh, (2006) 6
SCC 498

4. Usha Balashaheb Swami Vs Kiran Appaso
Swami, (2007) 5 SCC 602

5. Bhagwan Swaroop Tripathi Vs Gaushala
Committee, Shikohabad, 2011 (88) ALR 188

6. Abdul Rehman Vs Mohd. Ruldu, (2012) 11
SCC 341

7. Rajendra Shanker Tripathi Vs Ajay Kumar
Gupta, 2011 (113) RD 651

8. L.J. Leach & Co. Ltd. Vs Jardine Skinner &
Co., AIR 1957 SC 357

9. Estralla Rubber Vs Dass ESt. (P) Ltd., (2001)
8 SCC 97

10. J. Samuel Vs Gattu Mahesh, (2012) 2 SCC
300

11. Rameshkumar Agarwal Vs Rajmala Exports
(P) Ltd., (2012) 5 SCC 337

(Delivered by Hon'ble J.J. Munir, J.)

1. This civil revision is directed
against an order of the Civil Judge (Sr.
Div.), Rampur dated the 6th of July, 2022,
rejecting an application by the defendants
to amend their written statement.

2. The plaintiff-respondent instituted
O.S. No.203 of 2021 before the Civil Judge
(Sr.
Div.),
Rampur
for
specific
performance
of
contract
against
the
defendant-revisionists. He claimed specific
performance of a registered agreement to
sell dated 30.11.2018, said to be executed
in favour of the plaintiff-respondent by
defendant-revisionists Nos.3 and 4, to wit,
Jagtar Singh and Smt. Sukhraj Kaur. Not to
enter the thicket of facts that parties have
pleaded in this case, but to take note of
those essential, that form the essence of the
controversy, leading to this revision, it
would, for a first, need be said how the
defendant-revisionists are related to each
other.
The
defendant-revisionist
No.3
Jagtar Singh, is the son of Smt. Sukhraj
Kaur,
defendant-revisionist
No.4.
Defendant-revisionist No.1, Smt. Kinder
Jeet Kaur is Jagtar Singh's wife, whereas
Master Gurudeep Singh Sandhu, defendantrevisionist No.2, is Jagtar and Kinder Jeet
Kaur's son, a minor aged about 12 years.
The
plaintiff-respondent,
Karam
Jeet
Singh, is a Non-Resident Indian, settled in
Birmingham, United Kingdom. He has
instituted the present suit for specific
performance through his power of attorney
holder, Karan Singh, a resident of Village
Tali Farm, Post and Tehsil Bajpur in the
district
of
Udham
Singh
Nagar,
Uttarakhand.

3. The substance of the plaintiffrespondent's case is that he entered into a
contract to purchase the suit property with
defendant-revisionists Nos.3 and 4, which
is agricultural land, comprising different
plot numbers, described in the plaint,
admeasuring a total of 2.0305 hectares and
situate at Village Shekhupura, Tehsil Swar,
District
Rampur.
The
defendantrevisionists Nos.3 and 4 were recorded
bhumidhars with transferable rights in the
suit property. The plaintiff-respondent, on
one hand, and the defendant-revisionists
Nos.3 and 4, on the other, according to the
plaintiff-respondent, voluntarily entered
into the suit agreement dated 30.11.2018,
duly admitted to registration by the SubRegistrar, Swar, Rampur, where defendantrevisionists Nos.3 and 4 covenanted to
convey the suit property to the plaintiffrespondent for a total sale consideration of
Rs.78,52,000/-. The suit agreement, that
was executed, was one without possession.
Out of the agreed sale consideration,
defendant-revisionists
Nos.3
and
4,
48 INDIAN LAW REPORTS ALLAHABAD SERIES
according
to
the
plaintiff-respondent,
received an earnest of Rs.70 lakhs through
cheques and cash, leaving a residue of
Rs.8,52,000/- to be paid at the time of
registration of the sale deed. It was
covenanted also by parties to the suit
agreement that the sale deed would be
executed
by
01.06.2020.
It
is
the
plaintiff's case that well before the arrival
of the agreed date i.e. 01.06.2020,
defendant-revisionists Nos.3 and 4 gifted
away the suit property through registered
gift deeds, both dated 29.02.2020 in
favour of defendant-revisionist Nos.1 and
2. The suit was, therefore, brought for
specific
performance
of
the
suit
agreement,
cancellation
of
the
two
registered gifted deeds dated 29.02.2020,
executed by defendant-revisionists Nos.3
and 4 in favour of defendant-revisionist
Nos.1 and 2, besides a permanent
prohibitory injunction, restraining the
defendant-revisionists
from
further
transferring the suit property in favour of
any
third-party
or
delivering
its
possession to anyone else.

4. A written statement was filed in
the
suit
on
behalf
of
defendantrevisionists Nos.3 and 4, who are
defendant Nos.1 and 2 to the suit. The
defendant-revisionists Nos.3 and 4, in
substance,
plead
in
their
written
statement that they were defrauded by
Balkar Singh, a son of defendant No.3's
elder brother into executing the suit
agreement in favour of the plaintiffrespondent, Karam Jeet Singh, also called
Paul UK. It is pleaded in the written
statement that Balkar Singh was entrusted
by defendant-revisionists Nos.3 and 4 to
take care of their farming done on the suit
property, for reason that Balkar Singh
enjoyed defendant-revisionist No.3's trust.
Balkar Singh, in connivance with his wife,
Rajvinder Kaur and her brother Balveer Rai
and another Gurpreet Singh, represented to
the defendant-revisionists that all of them
could migrate to UK and work there with
the assistance of the plaintiff. It is said
that at the same time for the purpose of
facilitating
the
defendant-revisionists
Nos.3 and 4's transactions of money
relating to the farming, bank accounts
were got opened with the Axis Bank,
Branch
Bajpur
for
both
defendantrevisionists Nos.3 and 4. In the said
accounts, the mobile number given was
Balkar Singh's father's, so that the
defendant-revisionists Nos.3 and 4 would
not
receive
any
alerts
about
the
transactions done.

5. At the same time, Balkar Singh
and
his
associates,
inspiring
the
defendant-revisionists
about
their
migration to the UK with the help of the
plaintiff, told them that they had to have
a sum of at least Rs. 2 crores in their
account to get a UK citizenship or
commercial VISA. There are some other
allegations related to agreements got
executed by Balkar Singh in favour of his
wife, but that is not directly related to the
issue involved here. It is said by
defendant-revisionists Nos.3 and 4 that
Balkar Singh, on the pretext of getting a
special power of attorney, executed in his
favour by defendant-revisionists Nos.3 and
4, took them to the Sub-Registrar's office
on 30.11.2018. He represented to them that
the special power of attorney had to be
executed by defendant-revisionists Nos.3
and 4 in order to enable him to deal with
matters
relating
to
the
defendantrevisionists' immigration to UK and also to
manage their farm related transactions. The
suit agreement was got executed by
defendant-revisionists Nos.3 and 4 by
Balkar Singh in favour of the plaintiff-
4 All. Smt. Kinder Jeet Kaur Vs. Karamjeet Singh
49
respondent, misrepresenting its character as
a
power
of
attorney,
without
any
consideration settled or paid.

6. In this very detailed written
statement
filed
on
behalf
of
the
defendant-revisionists Nos.3 and 4, where
the defence appears to be indicative of a
fraud and misrepresentation, practiced
upon the said defendant-revisionists by
Balkar
Singh
and
his
associates,
including
the
plaintiff-respondent,
amendments were sought to paragraph
No.29 and by an addition to the written
statement, numbered as paragraph No.55अ. In paragraph No.29 of the written
statement in the fourth line for the word
"है" after the word "कराता", the word
"र्ा" was sought to be substituted.

7. In order to better appreciate the
nature of the amendment sought to be
effected in paragraph No.29 of the
written statement, it would be apposite to
quote paragraph No.29 of the written
statement filed on behalf of defendantrevisionists Nos.3 and 4 (defendant Nos.1
and 2 to the suit):

"29. यह सक कसर्त इकरारनामा
मुआयदाबय का गवाह बलकार ससिंह प्रसतवादी
सिं0-1 के ताऊ का पुत्र अर्ाथत सगा तहेरा भाई
है। प्रसतवादी सिं0-1 कई वर्थ से बीमार चल रहा
है। बीमारी के कारण अपनी काश्त की आराजी
पर कृसर् कायथ ठेके पर अपने सगे तहेरे भाई
बलकार पुत्र गुरूदेव ससिंह से कराता है।
बलकार ससिंह पररवार का होने के कारण यह
जानता है सक प्रसतवादी - उत्तरदातागण के
खास सगे ररश्तेदार इग्लैंड में हैं । बलकार ससिंह
लोगो को सवदेश भेजने का भी कायथ वादी के
सहयोग से करता है। उसकी इस सम्बन्ध में
अच्छी पकड़ व जानकारी हैं।"

8. The amendment sought is to
substitute the word "है", shown in bold
letter by the word "र्ा". The other
amendment sought is the addition of a
paragraph, numbered as 55 (अ). This reads
as follows:

"55 (अ) यह सक बलकार ससिंह पुत्र
गुरदेव ससिंह, श्रीमती रजसवन्दर कौर पत्नी
बलकार ससिंह, दलजीत ससिंह व नरेन्द्र ससिंह
पुत्रगण सन्तोर् ससिंह समस्त सनवासीगण िाम
शेखपुरा, तहसील स्वार, सजला रामपुर बलवीर
ससिंह राय व गुरप्रीत ससिंह पुत्रगण चरनजीत ससिंह,
श्रीमती सकरनदीप कौर पत्नी बलवीर ससिंह समस्त
सनवासीगण िाम इकिारा, तहसील बाजपुर,
सजला ऊिमससिंहनगर (उत्तराखण्ड) तर्ा सुनील
कुमार पुत्र महेन्द्र ससिंह सनवासी िाम कुण्डा
तहसील
बाजपुर,
सजला
ऊिमससिंहनगर
आवश्यक एविं प्रोपर पक्ष है सजस कारण वाद
उपरोक्त में आवश्यक व प्रोपर पक्षकार न बनाये
जाने के कारण पक्षोिं के असिंयोजन के दोर् से
दूसर्त है।"

9. The plaintiff resisted these
amendments before the learned Trial Judge
on ground that one amounted to withdrawal
of an admission, and the other, to implead
parties to the suit, who were not parties to
the contract. The learned Trial Judge by the
order impugned rejected the amendment
application. The Trial Court opined that
after commencement of trial, it had to be
established necessarily by the defendants
why steps were not promptly taken to
introduce the amendment. It was held that
going by the proviso to Rule 17 of Order
VI CPC, the defendants have not been able
to show why steps were not taken
promptly. The suit was indicated to be set
down
for
trial,
which
had
already
commenced. The other reason for refusing
addition of paragraph 55 (अ) to the written
50 INDIAN LAW REPORTS ALLAHABAD SERIES
statement assigned by the Trial Court is
that it is not indicated in the written
statement how the persons, whom the
defendants want to implead as necessary
and proper parties, have assisted or
connived with the plaintiff. A reference is
made by the Trial Court to the decision of
the Supreme Court in Vidur Impex and
Traders Private Limited and others v.
Tosh Apartments Private Limited and
others, (2012) 8 SCC 384, for the principle
that in a suit for specific performance, nonparties to the contract need not be
impleaded.

10. The Trial Judge repelled the
contention put forward on behalf of the
defendant-revisionists that at the stage of
permitting amendment, it was not to be
seen if the persons, whose names were
sought to be introduced in the pleading, are
necessary or proper parties. Through the
plea of non-joinder sought to be introduced,
the Trial Court opined that because it was
proposed to seek impleadment of parties, it
was necessary to examine, at that stage
itself, if the persons, whose names were
sought to be introduced, were in fact
necessary and proper parties. Relying on
the proviso to Rule 17 of Order VI and the
absence of necessity to implead persons,
not parties to the contract, both the
proposed amendments were declined.

11. Heard Mr. Shreeprakash Singh,
learned
Counsel
for
the
defendantrevisionists and Mr. Virendra Kumar
Gupta, learned Counsel appearing on
behalf of the sole plaintiff-respondent.

12. It is submitted by the learned
Counsel for the defendant-revisionists that
it is not an inflexible rule that no
amendment
can
be
made
after
commencement of trial, unless the Court
comes to the conclusion that despite due
diligence, it could not be raised before such
commencement.
It
is
argued
that
amendments to the written statement are to
be granted by a more liberal standard as
compared to an amendment to the plaint
and the amendments which the defendantrevisionists
seek
are
no
more
than
amplification or the correct statement of
facts, not inconsistent with the other pleas.
It is argued that the Trial Court has adopted
a hyper-technical approach in rejecting the
amendment application, which ought to be
eschewed by a Court generally, while
considering pleas seeking amendments to
the written statement.

13. It is submitted by the learned
Counsel
for
the
plaintiff-respondent,
supporting the impugned order, that it is
not permissible to grant amendment after
commencement of trial in view of the
proviso appended to Rule 17 of Order VI
CPC. The defendant-revisionists had filed a
very detailed written statement and there
was no purpose to be served by seeking the
proposed
amendments
after
commencement of trial. It was just a
pretext to delay trial. In addition, it is
argued that by seeking substitution of the
word "र्ा" in place of "है" in paragraph
No.29
of
the
written
statement,
an
admission in favour of the plaintiff is
sought
to
be
withdrawn,
which
is
impermissible, going by the first principles
governing the law of amendment.

14. So far as the addition of paragraph
55(अ) is concerned, it is submitted that it is
well settled that persons, who are not
parties to the suit agreement, need not be
impleaded
in
a
suit
for
specific
performance. The plea sought to be
introduced about non-joinder of the parties,
is ultimately directed to secure their
4 All. Smt. Kinder Jeet Kaur Vs. Karamjeet Singh
51
impleadment to the suit. Therefore, it is
urged that the Trial Court was right in
scrutinizing, if at all the plea of nonjoinder of those parties, sought to be
raised in the written statement, would be
of any permissible avail to the defendantrevisionists, in order to be allowed by
way of amendment.

15. We have carefully considered
the submissions made by parties and
perused the record.

16. So far as the amendments sought
to paragraph No.29 of the written
statement is concerned, the amendment is
one that seeks to substitute the words "है"
for "र्ा" there. The effect of the proposed
amendment is not at all to withdraw any
admission made in favour of the plaintiff.
This is so because the relevant pleading
in the first instance is about defendantrevisionist No.3's terms with his cousin
Balkar Singh about the affairs of his
farming. Whereas in the unamended
paragraph,
the
defendant-revisionists
have has said that they get their farming
done by Balkar Singh, what they now
seek to say is that defendant-revisionist
No.3 got all that farming done by Balkar
Singh in the past. It seeks to disown any
current association between Balkar Singh
and defendant-revisionist No.3, in the
affairs of his farming. The proposed
amendment is generally in keeping with the
fabric
of
the
defendant-revisionists'
wholesome defence. The defence is about
Balkar
Singh
being
involved
in
fraudulently getting defendant-revisionists
Nos.3 and 4 into executing the suit
agreement in favour of the plaintiff in
association with his wife, his wife's brother
and other associates, misleading defendantrevisionists Nos.3 and 4 about the character
of the document, by betraying the trust
reposed in him by them. This was done,
according to the defendant-revisionists, by
Balkar
Singh
and
his
associates,
misrepresenting to defendant-revisionists
Nos.3 and 4 that the special power of
attorney that they were asked to execute
would permit Balkar Singh to settle their
affairs about immigration to the UK and
also to handle matters of their farming back
home.

17. Now, in this context of things, if
the defendant-revisionists had inadvertently
said in paragraph No.29 that Balkar Singh
was still helping them in their farming,
which obviously he would not be doing
now in the changed circumstances, the
substitution of the word "है" for "र्ा" in
paragraph No.29, does not withdraw any
kind of admission made. It is rather one
sought to explain the correct facts, pleaded
in the written statement and put them in
order with the general scheme of defence.
The amendment of this paragraph would
also hardly cause any prejudice to the
plaintiff because all facts, elsewhere
pleaded in the written statement, blame
Balkar Singh for his connivance with the
plaintiff.

18.

The
principles
governing
amendments to the written statement have
been laid down by the Supreme Court in
State of Bihar and others v. Modern
Tent House and another, (2017) 8 SCC
567. In Modern Tent House (supra), it has
been held by the Supreme Court:

"7. It is not in dispute that the suit
filed by the respondents against the
appellants out of which this appeal arises is
still pending. It is also not in dispute that
the evidence of the parties is not yet over.
In other words, the trial in the suit is going
on.
52 INDIAN LAW REPORTS ALLAHABAD SERIES

8.
We
have
perused
the
amendment
application
filed
by
the
appellants. We find that firstly, the
proposed amendment is on facts and the
appellants in substance seek to elaborate
the facts originally pleaded in the written
statement; secondly and in other words, it
is in the nature of amplification of the
defence already taken; thirdly, it does not
introduce any new defence compared to
what has originally been pleaded in the
written statement; fourthly, if allowed, it
would neither result in changing the
defence already taken nor will result in
withdrawing any kind of admission, if
made in the written statement; fifthly, there
is no prejudice to the plaintiffs, if such
amendment
is
allowed
because
notwithstanding the defence or/and the
proposed amendment, the initial burden to
prove the case continues to remain on the
plaintiffs; and lastly, since the trial is not
yet completed, it is in the interest of justice
that the proposed amendment of the
defendants should have been allowed by
the courts below rather than to allow the
defendants to raise such plea at the
appellate stage, if occasion so arises."

19.

The
principles
regarding
amendment to the written statement have
also been laid down by the Supreme Court
in Baldev Singh and others v. Manohar
Singh and another, (2006) 6 SCC 498,
where it has been observed:

"9. Keeping this principle in
mind, let us now consider the provisions
relating to amendment of pleadings. Order
6 Rule 17 of the Code of Civil Procedure
deals with amendment of pleadings which
provides that the court may at any stage of
the proceedings allow either party to alter
or amend his pleadings in such manner and
on such terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties. From a bare perusal of this
provision, it is pellucid that Order 6 Rule
17 of the Code of Civil Procedure consists
of two parts. The first part is that the court
may at any stage of the proceedings allow
either party to amend his pleadings and the
second part is that such amendment shall be
made for the purpose of determining the
real controversies raised between the
parties. Therefore, in view of the provisions
made under Order 6 Rule 17 CPC it cannot
be doubted that wide power and unfettered
discretion has been conferred on the court
to allow amendment of the pleadings to a
party in such manner and on such terms as
it appears to the court just and proper.
While
dealing
with
the
prayer
for
amendment, it would also be necessary to
keep in mind that the court shall allow
amendment of pleadings if it finds that
delay in disposal of suit can be avoided and
that
the
suit
can
be
disposed
of
expeditiously. By the Code of Civil
Procedure (Amendment) Act, 2002 a
proviso has been added to Order 6 Rule 17
which restricts the courts from permitting
an amendment to be allowed in the
pleadings of either of the parties, if at the
time
of
filing
an
application
for
amendment,
the
trial
has
already
commenced. However, the court may allow
amendment if it is satisfied that in spite of
due diligence, the party could not have
raised the matter before the commencement
of trial. So far as proviso to Order 6 Rule
17 of the Code of Civil Procedure is
concerned, we shall deal with it later.

11. A bare perusal of the order
rejecting the application for amendment of
the written statement indicates that while
rejecting the application for amendment of
the written statement, the High Court as
4 All. Smt. Kinder Jeet Kaur Vs. Karamjeet Singh
53
well as the trial court based their decisions
mainly on three grounds. The first ground
was that since the appellants had made
certain admissions in the written statement,
its
amendment
cannot
be
allowed
permitting the appellants to withdraw their
admission made in the same. Secondly, the
question of limitation cannot be allowed to
be raised by way of an amendment of the
written statement and lastly, inconsistent
pleas in the written statement cannot also
be allowed to be raised by seeking its
amendment.

14. As noted hereinearlier, the
case set up by the plaintiff-Respondent 1
was that his parents had no money to
purchase the suit property and it was the
plaintiff-Respondent 1 who paid the
consideration
money.
In
the
written
statement, this fact was denied and further
it was asserted in the written statement that
the suit property was in fact purchased by
their parents and they had sufficient income
of their own. In the application for
amendment of written statement it was
stated that the plaintiff-Respondent 1 did
not
have
any
income
to
pay
the
consideration money of the suit property
and in fact the parents of the plaintiffRespondent 1 had sufficient income to pay
the sale price. It was only pointed out in the
application for amendment that after the
death of their parents, the suit property was
mutated in the joint names of the plaintiffRespondent 1 and the defendants in equal
shares. Therefore, the question whether
certain admissions made in the written
statement were sought to be withdrawn is
concerned, we find, as noted hereinearlier,
there was no admission in the written
statement from which it could be said that
by filing an application for amendment of
the written statement, the appellants had
sought to withdraw such admission. It is
true that in the original written statement, a
statement has been made that it is
Defendant-Appellant 1 who is the owner
and is in continuous possession of the suit
property, but in our view, the powers of the
court
are
wide
enough
to
permit
amendment of the written statement by
incorporating
an
alternative
plea
of
ownership
in
the
application
for
amendment of the written statement. That
apart, in our view, the facts stated in the
application for amendment were in fact an
elaboration
of
the
defence
case.
Accordingly, we are of the view that the
High Court as well as the trial court had
erred in rejecting the application for
amendment of the written statement on the
ground that in the event such amendment
was allowed, it would take away some
admissions
made
by
the
defendantappellants in their written statement. That
apart, in Estralla Rubber v. Dass Estate (P)
Ltd. [(2001) 8 SCC 97] this Court held that
even if there were some admissions in the
evidence as well as in the written
statement, it was still open to the parties to
explain the same by way of filing an
application for amendment of the written
statement. That apart, mere delay of three
years
in
filing
the
application
for
amendment of the written statement could
not be a ground for rejection of the same
when no serious prejudice is shown to have
been caused to the plaintiff-Respondent 1
so as to take away any accrued right.

15. Let us now take up the last
ground on which the application for
amendment of the written statement was
rejected by the High Court as well as the
trial court. The rejection was made on the
ground that inconsistent plea cannot be
allowed to be taken. We are unable to
appreciate the ground of rejection made by
the High Court as well as the trial court.
After going through the pleadings and also
the statements made in the application for
54 INDIAN LAW REPORTS ALLAHABAD SERIES
amendment of the written statement, we
fail to understand how inconsistent plea
could be said to have been taken by the
appellants
in
their
application
for
amendment of the written statement,
excepting the plea taken by the appellants
in the application for amendment of
written statement regarding the joint
ownership
of
the
suit
property.
Accordingly, on facts, we are not
satisfied
that
the
application
for
amendment of the written statement could
be rejected also on this ground. That
apart, it is now well settled that an
amendment of a plaint and amendment of
a written statement are not necessarily
governed by exactly the same principle. It
is true that some general principles are
certainly common to both, but the rules
that the plaintiff cannot be allowed to
amend his pleadings so as to alter
materially or substitute his cause of
action or the nature of his claim has
necessarily no counterpart in the law
relating to amendment of the written
statement. Adding a new ground of
defence or substituting or altering a
defence does not raise the same problem
as adding, altering or substituting a new
cause of action. Accordingly, in the case
of amendment of written statement, the
courts are inclined to be more liberal in
allowing amendment of the written
statement than of plaint and question of
prejudice is less likely to operate with
same rigour in the former than in the
latter case."

20. There is a further restatement of
the principle that amendments to the
written statement are to be more liberally
granted as compared to amendments to
the
plaint,
even
one
explaining
an
admission or taking inconsistent pleas, to
be found in Usha Balashaheb Swami and
others v. Kiran Appaso Swami and
others, (2007) 5 SCC 602. In Usha
Balashaheb Swami (supra), it has been
held by the Supreme Court:

"21. As we have already noted
herein
earlier
that
in
allowing
the
amendment of the written statement a
liberal approach is a general view when
admittedly in the event of allowing the
amendment
the
other
party
can
be
compensated in money. Technicality of law
should not be permitted to hamper the
courts in the administration of justice
between the parties. In L.J. Leach & Co.
Ltd. v. Jardine Skinner & Co. [AIR 1957
SC 357] this Court observed

"that
the
courts
are
more
generous in allowing amendment of the
written statement as the question of
prejudice is less likely to operate in that
event".

In that case this Court also held

"that the defendant has right to
take alternative plea in defence which,
however, is subject to an exception that by
the proposed amendment the other side
should
not
be
subjected
to
serious
injustice".

22. Keeping these principles in
mind, namely, that in a case of amendment
of a written statement the courts would be
more liberal in allowing than that of a
plaint as the question of prejudice would be
far less in the former than in the latter and
addition of a new ground of defence or
substituting or altering a defence or taking
inconsistent pleas in the written statement
can also be allowed, we may now proceed
to consider whether the High Court was
justified in rejecting the application for
amendment of the written statement."

21. The issue, if the substitution of the
word "र्ा" for "है" would amount to
4 All. Smt. Kinder Jeet Kaur Vs. Karamjeet Singh
55
withdrawal of an admission, which we have
answered earlier in this judgment and held
that it does not. The view that this Court
takes that the proposed amendment has to
be understood consistent with the general
fabric of the defence, finds support in the
holding
of
this
Court
in
Bhagwan
Swaroop
Tripathi
and
others
v.
Gaushala Committee, Shikohabad and
another, 2011 (88) ALR 188, where it is
observed:

"13. In my opinion, the document
has to be read in whole and in case, the
amended paragraph 1 of the written
statement and paragraph 20 are read
together it will be found that they are
inconsistent and paragraph 20 clearly
shows that the intention of the petitioner
was never to admit the contention of the
respondent that society was registered at
the time of filing the present suit and the
petitioner has never tried to wriggle out
from own admission since in paragraph 20
of the written statement it was categorically
stated that registration of the petitioner has
already expired and the suit is not
maintainable, as such, there was no
occasion for him to admit the contents of
the paragraph 1 of the written statement
with regard to registration......"

22. This Court is, therefore, of
opinion that substituting the word "र्ा" for
"है" in paragraph No.29 does not amount to
withdrawal of any kind of admission and is
in no way an amendment inconsistent with
the general scheme of the defendantrevisionists' defence. In any case, it does
not prejudice the plaintiff-respondent in
any manner, so as to entitle the plaintiff to
have the proposed amendments refused.

23. Now, the other issue which the
Trial Court has considered in declining the
amendment is based on the proviso to Rule
17 of Order VI of the CPC. It is no doubt
true as a rule that after commencement of
trial, amendment should not generally be
permitted. One exception, however, is
mentioned by the proviso itself and that is
that despite due diligence, the party could
not
have
raised
the
matter
before
commencement of trial. But, the rule
embodied in the proviso is not an inflexible
rule. In this connection, the principles laid
down by the Supreme Court in Abdul
Rehman and another v. Mohd. Ruldu
and others, (2012) 11 SCC 341 are
seminal. It is observed in Abdul Rehman
(supra):

"11. The original provision was
deleted by Amendment Act 46 of 1999,
however, it has again been restored by
Amendment Act 22 of 2002 but with an
added proviso to prevent application for
amendment being allowed after the trial has
commenced, unless the court comes to the
conclusion that in spite of due diligence,
the party could not have raised the matter
before the commencement of trial. The
above proviso, to some extent, curtails
absolute discretion to allow amendment at
any stage. At present, if application is filed
after commencement of trial, it has to be
shown that in spite of due diligence, it
could not have been sought earlier. The
object of the rule is that courts should try
the merits of the case that come before
them and should, consequently, allow all
amendments that may be necessary for
determining
the
real
question
in
controversy between the parties provided it
does not cause injustice or prejudice to the
other side. This Court, in a series of
decisions has held that the power to allow
the amendment is wide and can be
exercised at any stage of the proceeding in
the interest of justice. The main purpose of
56 INDIAN LAW REPORTS ALLAHABAD SERIES
allowing the amendment is to minimise the
litigation and the plea that the relief sought
by way of amendment was barred by time
is to be considered in the light of the facts
and circumstances of each case. The above
principles have been reiterated by this
Court in J. Samuel v. Gattu Mahesh [(2012)
2 SCC 300 : (2012) 1 SCC (Civ) 801] and
Rameshkumar Agarwal v. Rajmala Exports
(P) Ltd. [(2012) 5 SCC 337 : (2012) 3 SCC
(Civ) 92] Keeping the above principles in
mind, let us consider whether the appellants
have made out a case for amendment."
(emphasis by Court)

24. Reference may also be made to a
decision of this Court in Rajendra
Shanker Tripathi v. Ajay Kumar Gupta,
2011 (113) RD 651, where summarising
the principles, it was observed:

"4. Object of Order VI, Rule 17
of the Code of Civil Procedure is that the
Court should adjudicate on the merits of the
case that come before them and should
consequently allow all the amendments that
may be necessary for determining the real
question in controversy between the
parties. Order VI, Rule 17 consists of two
parts. The first part is discretionary and
leaves it to the Court to order amendment
of pleading while the second part is
imperative and enjoins the Court to allow
all the amendments which are necessary for
the purposes of determining the real
question in controversy between the
parties. It may be added that there is no
absolute rule that in every case where a
relief is barred because of limitation an
amendment should not be allowed.

5. A party cannot be refused a
just relief merely because of some mistake,
negligence, inadvertence or even infraction
of the rules of procedure. The Court
generally gives leave to amend the
pleadings to a party unless it is satisfied
that the party applying was acting mala fide
or that by his blunder he had caused injury
to his opponent. In the present case the
amendments which have sought to be
incorporated will not change the basic
nature of the written statement (sic-plaint).

6. After engaging an advocate the
party may remain supremely confident that
the lawyer will look after his interest. It
will not be proper that the party should
suffer for the inaction, deliberate omission
or misdemeanour of his Counsel. It is well
settled that litigant should not suffer for the
lapses on the part of his Counsel. Laws of
procedure are meant to regulate effectively,
assist and aid the object of doing
substantial and real justice."

25. The rule is not, therefore,
inflexible that in every case, where trial has
commenced, the doors of amendment are
irreversibly shut. In a case, where the facts
warrant, amendment can be granted post
commencement of trial as well. In case of
amendment to the written statement, the
standard has already been indicated to be
liberal, and to the understanding of this
Court, it would also have bearing on the
issue of a belated amendment to the written
statement, if brought in to clarify or
elaborate facts, already pleaded in the
written statement. In the present case, as
already said, the amendment to paragraph
No.29 does nothing more than to put the
pleadings in paragraph No.29 in accord
with the general matrix of pleadings on
behalf of defendant-revisionists.

26. So far as the other amendment is
concerned, the principle against nonjoinder of persons, who are not parties to
the suit agreement, was laid down by the
Supreme Court in Vidur Impex and
Traders Private Limited (supra) in a
4 All. Rajendra Singh & Ors. Vs. Prabhu Narayan Singh V.C. L.D.A. Lko. & Anr.
57
completely different context. The principle
was laid down in the context of an
application for impleadment by a party,
who had entered into a transaction with the
vendor to purchase the suit property, while
a suit for specific performance was
pending. The transaction was in violation
of an order of injunction, restraining the
vendor from alienating the suit property or
creating third party rights. It was a denial of
that kind of an application, that was upheld
by the Supreme Court in Vidur Impex and
Traders Private Limited.

27. Here, the amendments sought is
about parties, who are said to have
facilitated the plaintiff along with Balkar
Singh
in
perpetrating
a
fraudulent
transaction, as the defendant-revisionists
say, that led defendant-revisionists Nos.3
and 4 into entering into the suit
agreement with the plaintiff, thinking that
it was something very different. If in the
background of this defence, the plaintiff
has sought to raise a plea about nonjoinder of these persons said to be
involved in the conspiracy or the act of
connivance, refusal of the amendment
can hardly be said to be justified. It
would still be a matter to be seen, if
indeed, these persons ought to be
impleaded as parties. As already seen in
the context of broad principles relating to
the amendment of a written statement,
many pleas, some inconsistent, can and
ought to be permitted by way of
amendment, that cannot be permitted in
the case of a plaint. The Trial Judge, in
refusing
the
amendment
here,
has
certainly not gone by the settled standards
of permitting amendment to a written
statement.

28. The Trial Court, in declining the
amendment,
has
failed
to
exercise
jurisdiction vested in it, which would result
in failure of justice to the defendantrevisionists, if allowed to stand.

29. In the considered opinion of this
Court,
therefore,
the
amendment
application ought to have been and must,
therefore, be allowed.

30.