In CR No.1357 of 2014 (O&M)-PUNJ HC- There was no reason for defendant to not have pleaded Will in written statement when he averred that he was owner of suit property, says P&H HC while dismissing revision challenging dismissal of his amendment application
Justice Alka Sarin [24-01-2023]

Read Order: Dalbir Singh and Others v. Smt. Beero (deceased) through her LRs and Other

Monika Rahar

Chandigarh, January 24, 2023:  While dealing with a revision petition challenging the lower Court’s order dismissing the application filed by the defendant under Order VI Rule 17 CPC for amendment of his written statement to aver that he was a beneficiary of a Will transferring suit property in his favour, the High Court of Punjab and Haryana has dismissed the petition on the ground that having taken the stand that the defendant was owner of the suit property 40 years prior to the filing of the suit, there was no reason not to have pleaded the Will, if any, in detail in the written statement. 

The bench of Justice Alka Sarin held, 

“There was no reason for the defendant (Gurdit Singh) or his legal heirs for not having placed the relevant evidence on the record or raising detailed pleas regarding the Will. The application which has now been filed at the appellate stage would lead to a de novo trial which cannot be permitted.”

The plaintiff filed a suit for declaration to the effect that she was the owner in possession of half share of the suit land, being legal heir of S. Bhan Singh, with a consequential relief of permanent injunction restraining the defendant (Gurdit Singh) from alienating the suit property in any manner. 

It was stated in the plaint that the defendant got some false, frivolous and wrong entries in the revenue record and thereby got mutation regarding the estate left by his father sanctioned in his name. 

In the written statement, the defendant claimed the suit property had vested in him some 40 years ago as per the jamabandi pertaining to the year 1970- 71. It was further the stand that the defendant (Gurdit Singh) was owner in possession on the basis of a valid Will executed by S. Bhan Singh in his favour. 

The suit was decreed by the Trial Court. Aggrieved by the said judgment and decree, an appeal was preferred by the legal heirs of the defendant (Gurdit Singh) i.e. the present petitioners and the present second respondent. 

During the pendency of the appeal, an application under Order VI Rule 17 CPC was filed for amendment of the written statement to introduce the plea that the defendants were owners in possession of the suit property on the basis of a registered Will of 1969 executed by S. Bhan Singh in favour of the defendant (Gurdit Singh). 

The said application was contested by the plaintiff and vide impugned, the lower Appellate Court dismissed the said application. Aggrieved by the said order, the present revision petition was filed. Though originally the present revision petition was filed by all the legal heirs of the defendant (Gurdit Singh), however, subsequently the original petitioner no.2 (Hira Singh) was ordered to be transposed as respondent no.2 as he did not want to file the present revision petition. 

After hearing the parties, the Court observed that it was only at the appellate stage that the application for amendment of the written statement was filed on the ground that they became parties to the suit in 2011 and that the omission to mention that the defendant (Gurdit Singh) was the beneficiary of the Will was not willful or intentional.  

The Bench added that what could not be lost sight of was that from the very beginning, the claim of the plaintiff was that some false, frivolous and wrong entries had been made in the revenue record qua the estate left by his father in favour of the defendant who had no right, title or interest in the suit property. It was also noted that the defendant claimed himself to be the owner in possession of the suit property taking the stand that the suit property vested in him some 40 years ago. 

“The factum of a Will in his favour was also mentioned in the written statement. There was no reason for the defendant (Gurdit Singh) or his legal heirs for not having placed the relevant evidence on the record or raising detailed pleas regarding the Will”, the Bench observed while also adding, 

“The application which has now been filed at the appellate stage would lead to a de novo trial which cannot be permitted”.

Further, the Court held, 

“Having taken the stand that the defendant (Gurdit Singh) was owner of the suit property 40 years prior to the filing of the suit, there was no reason not to have pleaded the Will, if any, in detail in the written statement.”

The petition was dismissed.