Judgment:
Nirmal Singh, J.
1. The facts for the disposal of this civil revision are that the respondent filed a suit for declaration to the effect that plaintiff-respondent has become the owner by the efflux of time as Wadhawa Ram mortgaged the property with him vide mortgage deed dated 11.1.1965. The petitioners contested the suit and controverted the allegations by filing the written statement.
2. Respondent led the evidence. Petitioners were called upon to lead their defence evidence by affording eight opportunities. Then the evidence was closed by order. The case was fixed for rebuttal arguments and at that stage, petitioners moved an application under Order 6 Rule 17 CPC for amendment of the written statement and set up a counter claim. The proposed amendments of written statement and the counter claim are as under;-
'i) That in the end of para No. 3 of the pre-objection of the written statement the following is to added:-
That the defendant No. 1 Gurdial Singh has reconstructed the total house upto second storey and he constructed two rooms on ground floor and two rooms on first floor and spent Rs. four lacs and defendant No. 2 also reconstructed his portion of house and constructed two rooms on ground floor and spent Rs. two lacs, just after the purchase of house and the plaintiff has never objected the same. ii) That in the end of para No. 6 of the written statement on merits the following is to be added:-
That defendants had paid the mortgage money to the plaintiff just after the purchase of suit land and the plaintiff assured to give writing about the payment on the back of the sale deed, but he has not given the writing and taking advantage of oral payment by he defendant he is claiming non payment of mortgage money. Though the defendants had paid the mortgage money of Rs. 1750/- to the plaintiff. Even otherwise it is a usufructuary mortgage, and if this Hon'bfe Court reached to the conclusion that no amount of mortgage money has been paid, the defendants are ready to make the payment in this Hon'ble Court of the said mortgage amount. The defendants are owners in possession of the suit land vide sale deed dated 26.8.1987 and 15.10.1987 and the plaintiff has no right, title or interest to file the suit.
Counter claim:- 1. That though the defendants have paid the mortgage money of Rs. 1750/- to the plaintiff orally. Even otherwise the mortgage is usufructuary mortgage and thee is no time limit for redeeming the same and the defendants are ready to pay the amount of Rs. 1750/- of mortgage money to the plaintiff, if this Hon'ble Court reached to the conclusion that no amount was paid by the defendants to the plaintiff. Than the defendant be allowed to deposit the said amount of mortgage money in this Hon'ble Court and the suit property be ordered to be redeemed'
3. Plaintiff-respondent contested the application. After hearing the learned counsel for the parties, the learned Civil Judge (Jr. Division) Kurukshetra vide order dated 12.10.2000 dismissed the application.
4. After hearing the learned counsel for the parties and perusing the record, I am of the considered opinion that there is no illegality or irregularity in the impugned order.
5. The petitioners-defendants want to set up a counter claim by pleading that they have paid mortgage money amounting to Rs. 1750/- to the plaintiff orally. The petitioners have not stated in the application in which month and year the mortgage money was paid and have got the land redeemed.
6. On the other hand, the case of the respondent is that he has became the owner of property in dispute by the efflux of time as Wadhwa Ram had mortgaged the property with him vide mortgage deed dated 11.1.1965. A party cannot be allowed to set up a case which is barred by time. Admittedly Wadhwa Ram had mortgaged the property in the year 1965. If subsequently the petitioners have paid Rs. 1750/- orally, then they ought to have taken this stand in the written statement. The petitioners cannot set up a counter claim by amending the written statement when claim is barred by time. Furthermore petitioners are taking a contradictory plea by way of amendment and in the oral defence. The petitioners were afforded 8 opportunities to lead their defence but despite that the petitioners have not led any evidence in defence as there was no defence with the petitioners. The petitioners are seeking amendment with ulterior motive only to delay the proceedings.
7. For the reasons recorded above, there is no merit in this civil revision. The same is hereby dismissed with costs of Rs. 3,000/-.