Judgment:
C.R.No.4527 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr.No.106 Case No.: C.R.No.4527 of 2013 Date of Decision : Aug.
20, 2013 Bal Kishan Sharma @ Lilu Ram and another ...Petitioners versus Bhagwana and another ...Respondents CORAM : HON'BLE Mr.JUSTICE L.N.MITTAL * * * Present : Mr.S.N.
Gaur, Advocate for the petitioneRs.* * * L.N.MITTAL, J.
(Oral) : Defendants No.1 and 2 have filed this revision petition under Article 227 of the Constitution of India assailing order dated 01.06.2013 (Annexure P-3) passed by the trial court, thereby dismissing application (Annexure P-1) filed by the petitioners for amendment of their written statement.
Respondent no.1-plaintiff has filed suit for possession of suit property by pre-emption.
The suit property was sold by proforma Monika respondent no.2/defendant No.3 to defendants No.1 and 2/petitioneRs.2013.08.21 13:33 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.4527 o”
2. Defendants No.1 and 2, in their amendment application (Annexure P-1).alleged that at the time of filing written statement, the suit property was not within the municipal limits, but now, municipal limits of Faridabad have been extended, and now, the suit land falls within limits of Municipal Corporation, Faridabad, and therefore, the suit land is not pre- emptible.
Preliminary objection to this effect is sought to be added in the written statement by amendment.
Plaintiff, by filing reply (Annexure P-2).opposed the amendment application filed by the vendees/defendants No.1 and 2.
Learned trial court, vide impugned order (Annexure P-3).has dismissed amendment application (Annexure P-1) filed by defendants No.1 and 2, who have, therefore, filed this revision petition to assail the said order.
I have heard counsel for the petitioners and perused the case file.
Counsel for the petitioners stated that the suit land was within municipal limits since the enactment of the Faridabad Complex (Regulation and Development) Act, 1971, which came into force w.e.f.15.01.1972 and thus, the suit land was within municipal limits since long before the filing of the suit, which was filed on 11.01.2008.
Counsel for the petitioners contended that since the suit land is within municipal limits of Faridabad, Monika 2013.08.21 13:33 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.4527 o”
3. the same is not pre-emptible, and therefore, amendment of written statement to take the said objection should be allowed.
I have carefully considered the aforesaid contention, which cannot be accepted.
The amendment application was moved by the petitioners when the suit was at the stage of rebuttal evidence and final arguments.
According to proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short – CPC).amendment of pleading cannot be allowed after commencement of trial, unless the party seeking amendment could not have raised the matter before commencement of trial in spite of exercise of due diligence.
In the instant case, it cannot be said that in spite of exercise of due diligence, defendants no.1 and 2 could not have raised the proposed objection, which is not sought to be taken by amendment of written statement, before commencement of trial.
In the aforesaid context, it is significant to notice that the petitioneRs.in their amendment application, raised a patently false plea that at the time of filing of written statement, the suit property was not within municipal limits and the suit property has not come within the municipal limits.
However, as stated by counsel for the petitioneRs.the suit property came within the municipal limits as far back as in January 1972 i.e.36 years before the filing of the suit.
Consequently, the very basis of filing the Monika 2013.08.21 13:33 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.4527 o”
4. amendment application was false.
Moreover, in these circumstances, it cannot be said that even after exercise of due diligence, defendants No.1 and 2 could not have raised this plea before commencement of trial.
The petitioners or their counsel, while filing the written statement, could not have been unaware of the fact that the suit property was within municipal limits, if the same was within municipal limits for more than 36 years before filing of written statement.
For the reasons aforesaid, I find that the amendment application filed by the petitioners has been rightly dismissed by the trial court.
There is no infirmity, much less perversity, illegality or jurisdictional error in the impugned order of the trial court so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India.
The revision petition lacks any merit and is accordingly dismissed in limine.
Pending Civil Miscellaneous application(s) stand disposed of as infructuous.
Aug.
20, 2013 ( L.N.MITTAL ) monika JUDGE Monika 2013.08.21 13:33 I attest to the accuracy and integrity of this document High Court Chandigarh