Read Order: Harish Chander Alias Harish Bouri and Others v. Rajesh Malhotra and Others

Monika Rahar

Chandigarh, August 5, 2022: The High Court of Punjab and Haryana has recently held that as per the settled law, if a defendant takes a stand that the agreement is forged and fabricated, he cannot raise a plea that the plaintiff is not ready and willing to perform his part of the contract. 

Brief facts are that the plaintiff (first respondent) filed a suit for possession by way of specific performance of the agreement to sell dated as well as for the mandatory and permanent injunction. In the Written Statement, the execution of the agreement to sell was denied and it was contended that the same was a false, bogus and fabricated piece of document and did not bear the signatures of the defendants. A replication was filed.

After issues were framed and four witnesses of the plaintiff were examined, the defendant-petitioners filed an application under Order 6 Rule 16 CPC read with Order 6 Rule 17 CPC for amendment of the written statement. It was stated that though the defendant (first petitioner) was a Solicitor by profession practising in the UK, he was not aware of the legal matters and procedures in India and thus was dependent upon the advice of the   counsel who committed fraud with him. 

By the amendments sought, the defendant- petitioners wanted to amend the preliminary objections so as to not deny the execution of the agreement; raising an objection regarding the suit having been filed against dead persons; raising an objection regarding non-joinder and misjoinder of parties; raising an objection that the plaintiff (first respondent) had not performed his part of the contract and that the agreement was cancelled in 2008. 

In the amendment sought to the written statement on merits, the defendant-petitioners wanted to inter-alia raise a plea that they had never executed the agreement to sell and it was a forged document since the witnesses had entered on it later on but even if was presumed that they had executed the agreement the same was not on proper stamp paper and was not admissible in evidence. 

The Trial Court dismissed the said application. Hence, the present revision petition was filed. 

The counsel for the defendant-petitioners contended that the amendments to the written statement sought did not make out a new case  but rather were only for the purpose of explanation of facts and to take legal objections. 

The Court did not accept this reasoning on the ground that a completely opposite stand was being sought to be taken by the defendant-petitioners in the amendment application. The Court noted that in the original written statement, the defendant- petitioners took a plea of complete denial regarding execution of any agreement to sell as also the signature on the said application, whereas in the  amendment application, they were admitting it’s execution and were explaining the circumstances leading to it’s execution. 

Permitting the amendments qua the execution of the agreement to sell would not only prejudice the rights of the plaintiff-respondent No.1 but would also require recasting of issues and leading of fresh evidence. This would be nothing but allowing a de-novo trial which cannot be allowed in the garb of an amendment to the pleadings“, the Bench of Justice Alka Sarin opined. 

Further, the Court also added that as per the settled law, if a defendant takes a stand that the agreement is forged and fabricated, he cannot raise a plea that the plaintiff is not ready and willing to perform his part of the contract. Thus, in light of this proposition, the Court held that in this case, the defendants having raised a plea of the agreement being forged and fabricated and not signed by them, the amendments now sought would virtually change the entire written statement and the stand taken by the defendant-petitioner in the original written statement and this would cause great injustice to the plaintiff. 

Also, it was observed that the first petitioner was a qualified Solicitor practising in the United Kingdom and he cannot lie in the mouth of the defendant-petitioners to state that he was not aware of the facts or the law. 

It is not a case where a law point has wrongly been raised in the written statement. It is a case of a clear reversal of stand on the merits of the case”, the Court opined.

Also, regarding the blame put on previous counsel, the Court observed that the suit is based upon an agreement to sell and the defendant-petitioners ought to have been vigilant to take immediate steps to amend their pleadings once they discovered that the original written statement (in English language) did not convey the correct facts. 

The defendant-petitioners have tried to put the blame on their earlier counsel by pleading fraud being committed by him, but it is to be borne in mind that it is only the party which is privy to facts and can get the correct facts recorded in the pleadings. The counsel has not been able to justify the lethargy by the defendant-petitioners, which includes a Solicitor practising in the United Kingdom”, the Court held. 

Accordingly, the present revision was dismissed by the Court. 

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