Charanjit Kaur and Another vs Harbakshish Singh and Others

L.N. Mittal, J.—Defendants no. 1 and 2 have filed this revision petition under Article 227 of the Constitution of India impugning order dated 10.07.2013 (Annexure P-7) passed by the trial court, thereby dismissing application (Annexure P-5) filed by the petitioners under Order 6 Rule 16 of the CPC (in short - CPC) for striking out the replication along with issue no. 2 based thereon. Respondents no. 1 to 3/plaintiffs have filed suit against petitioners and proforma respondent no. 4 as defendants alleging that defendants have encroached upon property of plaintiffs. The defendants alleged in the written statement that they have purchased 28-2/3 sq. yds. area from the plaintiffs and have not encroached upon any area of the plaintiffs. The plaintiffs, in their replication (Annexure P-3), alleged that the defendants have failed to produce the original sale deed dated 27.10.1977, whereas in the certified copy of the said sale deed produced by the defendants on record, there is tampering by altering the area from 23-2/3 sq. yds. to 28-2/3 sq. yds. The defendants are aggrieved by this plea of the plaintiffs in their replication. It was alleged in the application (Annexure P-5) that plaintiffs could not take this new plea in the replication and no opportunity was either given to the defendants to file rejoinder to the replication.

Plaintiffs, by filing reply (Annexure P-6), opposed the application and controverted the averments made therein.

Learned trial court, vide impugned order (Annexure P-7), has dismissed the application filed by defendants no. 1 and 2, who have, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that the plaintiffs should have pleaded the alleged tampering of the sale deed in the plaint, which was amended by them after filing of written statement by the defendants. It was also contended that in replication, the plaintiffs could not have raised a new plea. It was also argued that no opportunity was either given to the defendants for filing rejoinder to the replication. It was also submitted that plaintiffs have pleaded tampering in the certified copy of the sale deed and not in the original sale deed.

I have carefully considered the aforesaid contentions, which are completely misconceived and meritless, although on first blush, the same appear to be forceful.

The plaintiffs admit the sale deed in question. The dispute is regarding the area purchased. Counsel for the petitioners fairly conceded that in their written statement to the original plaint, defendants had not pleaded the area purchased by them through the impugned sale deed. Consequently, even in amended plaint, the plaintiffs could not have pleaded tampering in the sale deed. On the other hand, it was in written statement to amended plaint that the defendants set up the aforesaid sale deed and produced certified copy thereof and also pleaded the area purchased. It was thereupon that the plaintiffs came to know about the tampering in question. The plaintiffs have alleged tampering in the certified copy of the sale deed (and not in the original sale deed) because admittedly, the defendants have not produced the original sale deed on record, and therefore, the plaintiffs could not know or plead that there was tampering in the original sale deed also. On the contrary, the defendants have placed on record certified copy of the sale deed, which according to the plaintiffs, stood tampered with and accordingly, the plaintiffs raised plea regarding the same in the replication.

Contention of counsel for the petitioners that new plea could not be raised in the replication cannot be accepted because purpose of filing the replication is to respond to the new pleas taken by defendants in their written statement. Consequently, in the instant case, the plaintiffs, in their replication, were certainly entitled to plead the alleged tampering in certified copy of the sale deed, which had been set up by the defendants.

As regards right of defendants to file rejoinder, they never made any such request to the trial court to grant them an opportunity to file rejoinder. If they had made any such request, only then they could have raised this grievance, if the same had been declined by the trial court. On the contrary, it is highly significant to notice that the plaintiffs filed replication (Annexure P-3) on 10.06.2009 and issues were also framed on the same day vide order (Annexure P-4) in the presence of counsel for the parties, but the defendants filed application (Annexure P-5) on 11.06.2012 i.e. three years after the filing of replication and framing of issues. There is no explanation for this long and inordinate delay of three years. For the reasons aforesaid, I find that application (Annexure P-5) filed by the petitioners has been rightly dismissed by the trial court. There is no 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.