MAHESHWARI, J. - (1.) THIS writ petition is directed against the order dated 06. 01. 2007 (Annex. 5) passed by the Civil Judge (Junior Division), Deogarh (Rajsamand) in Civil Suit No. 2/2004 rejecting the application for amendment of the written statement as moved by the defendants-petitioners.
(2.) BRIEFLY put, the background facts and relevant aspect are that the plaintiff Kishan Singh (respondent No. 2) and the defendant No. 1 Laxman Singh (petitioner No. 1) are bothers; the defendant No. 2 Deepak (petitioner No. 3) is the son of defendant No. 1; and the defendant No. 3 Smt. Kamla (petitioner No. 2) is the wife of the defendant No. 1. By way of the present suit, as filed on 01. 05. 2004 against the defendants Nos. 1 and 2, the plaintiff has sought perpetual injunction with the averments, inter alia, that a 30' x 45' plot of land as described in paragraph 1 of the plaint is of his ownership and has been in his possession ever since it was allotted to him by Gram Panchayat, Lasani on 30. 11. 1975; that after leaving a way in between, towards eastern side of the aforesaid plot is situated another piece of land as mentioned in paragraph 2 of the plaint that was allotted to the father of the plaintiff by Gram Panchayat, Lasani on 06. 03. 1963; and that father of the plaintiff had expired and the plaintiff and the defendant No. 1 are in joint possession of the land as mentioned in paragraph 2 of the plaint having 1/2 share each. While alleging that the defendants attempted to forcibly raise construction on the land described in paragraph 1 of the plaint, entered into altercations, and threatened that they would take over possession of father's plot too, the plaintiff has prayed for injunction that the defendants be restrained from interfering with the land described in paragraph 1 of the plaint and further be restrained from raising construction or interfering with joint possession of the plaintiff on the property described in paragraph 2 of the plaint. Perusal of the record makes out that the plaintiff also filed an application for temporary injunction with the said suit; and on 04. 05. 2004, while the original defendants Nos. 1 and 2 (present petitioner Nos. 1 and 3) put in appearance and filed their reply, the present petitioner No. 2 Smt. Kamla moved an application for being impleaded a party to the proceedings with the submissions that the land in question as described in paragraph 2 of the application for temporary injunction (i. e. , the land described in paragraph 1 of the plaint) is of her exclusive ownership and possession having been gifted by her husband Laxman Singh (defendant No. 1); and earlier the land was purchased by her husband from Harendra Singh son of Kushal Singh Rajput for a consideration of Rs. 271/- and had been in his possession for about 39 years. The applicant claimed herself to be a necessary party having direct interest as owner of the property in question. The application as moved by the petitioner No. 2 was allowed by the learned Trial Court on 21. 05. 2004 and she was ordered to be joined as defendant No. 3 in the suit and as non-applicant No. 3 in the application for temporary injunction. It is borne out from the record that the application for temporary injunction was allowed by the learned Trial Court on 03. 06. 2004; and the defendants have been restrained from interfering with the land in question. In the suit proceedings, the defendants-petitioners filed their joint written statement on 03. 08. 2004 and while stating that the land described in paragraph 1 of the plaint was of 40' x 60' size and not 30' x 45' as alleged by the plaintiff, and while alleging that the neighbours have encroached over major portion of the land described in paragraph 2 of the plaint, and while denying the right of the plaintiff to get any injunction issued, the defendants-petitioners proceeded to make additional submissions and raised objections to the effect that the land described in paragraph 1 of the plaint was of the defendants Nos. 1 and 3 and had been in their possession for 45 years. While elaborating on the aspect of title, the defendants asserted that the said land was purchased by the defendant No. 1 from Harendra Singh for Rs. 271/- on Vaishakh Sudi 3, Svt. 2019; and that the said vendor had executed and handed over a document to the defendant No. 1. The defendants further asserted that in the AD Year 2002, the defendant No. 1 made a gift of the suit property to his wife (defendant No. 3); and further that the defendant No. 3 as an owner has obtained its patta from Gram Panchayat, Lasani on 03. 07. 2002 after depositing an amount of Rs. 200/ -. It may be pointed out that in this suit, before filing of the written statement by the defendants, the plaintiff filed several documents on 28. 07. 2004, which include (i) a certification dated 11. 06. 2004 from Gram Panchayat, Lasani (at page C- 18/3 to C-18/5 of the record) to the effect that no such patta was issued to the defendant No. 3, that the alleged resolutions were not of issuance of any patta to the defendant No. 3, that no such amount of Rs. 200/- was found deposited with the Panchayat, and that no copy of the alleged patta was available on record; (ii) an affidavit from the Sarpanch of concerned Gram Panchayat at the relevant time that no such patta in favour of the defendant No. 3 was issued under his signatures (at page C 18/6); and (iii) an affidavit from the said Shri Harendra Singh that he did not sell any such land to the defendant No. 1 (at page C 18/7 ). On 23. 05. 2006, when the matter was posted for framing of issues, the defendants-petitioners filed the application for amendment in the written statement and made the submissions that a patta of the land in question was issued in the name of defendant No. 1 by Gram Panchayat, Lasani on 09. 08. 1975 that could not be traced earlier despite all efforts. While seeking to delete the averments as taken in the written statement that size of the plot in question was 45' x 60' and not 30' x 45'; and while seeking to retain other averments in paragraphs 2 to 9 of the written statement, the petitioners submitted that they wish to delete entire of the paragraphs 1 to 7 of the additional submissions and to substitute the same with the averments that Gram Panchayat, Lasani had issued patta of the land in question in favour of the defendant No. 1 on 09. 08. 1975 and, therefore, the patta issued in favour of the plaintiff on 30. 11. 1975 was void and ineffective; and further that the defendant No. 1 got possession of the land in question after making payment of Rs. 271/- to the erstwhile Jagirdar Harendra Singh in Svt. Year 2019; and considering it essential, the defendant No. 1 did obtain patta from Gram Panchayat, Lasani on 09. 08. 1975; and for such patta being not traceable, another patta was obtained from Gram Panchayat, Lasani in the name of defendant No. 3, that was a mere formality.
(3.) THE learned Trial Court has rejected the said application for amendment by its impugned order dated 06. 01. 2007 with the observations that nowhere has it been indicated in the original written statement that any patta was issued to the defendant No. 1 by Gram Panchayat, Lasani and that such a patta was not traceable despite efforts. THE learned Trial Court has observed that permitting such amendment on the basis of the assertion that the alleged patta has now been found would be altering the entire scope of the suit and to create complications in just decision of the matter. Aggrieved by rejection of their application for amendment, the defendants have preferred this writ petition. Assailing the aforesaid order dated 06. 01. 2007, learned counsel for the defendants-petitioners has strenuously contended that the learned Trial Court has failed to consider the principles of law applicable to the prayer for amendment of the written statement and has rejected the application for amendment without any reason or justification. Learned counsel referred to the decisions of the Hon'ble Supreme Court in Akshaya Restaurant Vs. P. Anjanappa & Anr. : 1995 Supp. (2) SCC 303, Baldev Singh & Ors. Vs. Manohar Singh & Anr. : JT 2006 (7) SC 139 = (2006 (4) RLW 3360 (SC), Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. : (2007) 5 SCC 602 = (2007 (3) RLW 2583 (SC), and Andhra Bank Vs. ABN Amro Bank N. V. & Ors. : (2007) 6 SCC 167 to submit that the amendment of the written statement is considered from a very liberal stand point; that introduction of a new ground of defence or substituting or altering the defence even while taking inconsistent pleas can be allowed. According to the learned counsel for the petitioners, in the present case, the petitioners are seeking to project on record the facts as are available with them and the pleas sought to be incorporated by way of amendment are not contrary to the stand in the original written statement whereby the defendants have denied the ownership claim of the plaintiff and have asserted their ownership rights over the land in question; and even if related to some additional facts, the petitioners are not precluded from taking such pleadings. Learned counsel submitted that the application for amendment was moved even before framing of the issues and in the circumstances of the case, the amendment ought to have been allowed. Per contra, learned counsel for the plaintiff-respondent submitted that the amendment as sought for in the present case is not merely of taking inconsistent pleas but is that of substituting the entire defence at its roots and such application cannot be said to be bona fide, particularly when the alleged patta of the defendant No. 1 is not even indicated in the written statement. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record of the case, this Court is clearly of the view that in the present case, the prayer for amendment cannot be said to be bona fide at all; and the order impugned calls for no interference. ;