JUDGMENT [ENTITY], J.
1. As Co-owner of the property No. 21-J, Pandav Nagar, Near Mother Dairy, Patpar Ganj, New Delhi, the plaintiff filed a suit for possession and recovery of damages for the use and occupation of the said premises against the defendants. This suit was contested by the defendants who took various preliminary objections as to maintainability of the suit. They denied the ownership of the plaintiff and in fact claimed that defendant No. 1 had purchased the said property and constructed one and a half-storeyed building over that property by incurring huge cost and no objection was raised at any time either by the plaintiff or defendant No. 2. Defendant No. 2 was proceeded against ex parte in the suit vide order dated 30.03.1989. By a detailed judgment and decree dated 29.08.2001, the trial court held that the plaintiff was the owner of the property and was entitled to decree for possession, however, it deferred the determination of quantum of damages under a separate enquiry as contemplated under [SECTION] of the [ACT], which is stated to be still pending before the trial court. Aggrieved from this decree, defendant No. 1 (appellant in the present appeal) filed the regular first appeal challenging the legality and correctness of the judgment and decree of the trial court. During the pendency of this appeal, the appellant filed an application under [SECTION] read with [SECTION] of the [ACT] being [CASE NUMBER], seeking permission to amend the written statement. This application was contested by the respondents/non-applicants who filed a detailed reply to this application on 14.5.2002. By this order, we shall dispose of this application of the appellant.
2. In the application for amendment, the appellant has averred that the property in question was acquired and the factum of acquisition of the land in question by the appropriate Government in the year 1972 could not be taken up before the trial court as it was not within the knowledge of the appellant. Since the facts have now come in the knowledge of the appellant, he wishes to raise a preliminary objection as to maintainability of the suit on the ground that the respondents in appeal were not the owner of the property and as such, the suit was liable to be dismissed. By way of amendment, he proposes to add the following preliminary objection No. 5:
(5) That the suit is barred by [SECTION] of [ACT] as the property in question vested to the Govt. Sree from all encumbrance vide Award ward No. 6/C-71-72 and the plaintiff has no cause of action to maintain the pre- sent suit. The suit of the plaintiff is malafide and has been filed to nullify the land acquisition.-Proceeding and under the garb of possession a declaration to this effect that suit property has not been acquired and plaintiff is the owner of the property in question.
3. It is also averred in this application that the proposed amendment is necessary to determine the real question in controversy; the amendment will not alter or change the nature of the suit; the amendment being legal in nature, should be permitted and after allowing the amendment, the court should proceed with the suit in accordance with law. The objections taken by the non- applicants in reply to this application are that the application for amendment has been filed at a belated stage and is malafide. Besides that, it is hit by [SECTION] of the [ACT]. It is also averred by the non-applicants that if the application is allowed, it will tantamount to denovo trial and would alter the original case filed by the plaintiff completely. The plea now taken was known to the applicant as the acquisition of land is by a public notice. Thus, the plea taken about knowledge of the acquisition in recent time, was factually incorrect. It is specifically disputed that the property in question has been subject matter of any acquisition proceedings or was covered by any award. On the contrary, it was argued that a constructed property is exempted from acquisition under the notification itself. On this premise, it is prayed that the application be dismissed with costs.
4. No doubt, the legislative intent while amending the provisions of [SECTION] of the [ACT] relating to amendment of pleadings by amending [ACT] effective from 1.7.2002 was to give it liberal interpretation. The purpose was to avoid unnecessary delay in suit proceedings and ensure expeditious disposal of the civil suits. The framers, while enacting, vested power in the court to allow amendment at any stage of the proceedings, in any manner, so far they were necessary for determining the real question in controversy between the parties. However, the legislature itself curtailed that power by adding [SECTION] by saying that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised such a plea. Appeal is continuation of the suit but certainly is a stage much beyond commencement of the trial. Where a decree has been passed and the aggrieved party challenges the correctness of the judgment and decree of the trial court in an appeal, the court would necessarily be more cautious in allowing such an amendment to ensure adherence to the object of law. The law of amendment has received much liberal interpretation/construction in recent years by judicial pronouncements. A party could even be permitted to take inconsistent pleas so far as the other principles governing the law of amendment are satisfied. Entire or substantial change in the basic cause of action as contemplated under civil jurisprudence, can hardly be permitted by way of an amendment, particularly when it results in serious prejudice to the non-applicants.
5. The scope of introducing a new case by way of an amendment and its effects was considered by a Single Judge of this Court in the case of [PRECEDENT], decided on 24th November, 2005, where while keeping in view the various judgments of High Court and Supreme Court, the Court held as under: ?The law of amendment has received liberal interpretation in the recent times, but in view of the amended provisions of [SECTION] [ACT], the Courts have been cautioned by the legislature so as not to exercise the discretion vested in the Court too liberally and literally. The present application is the second application for amendment filed by the plaintiff in the present case. The Court can allow amendment of pleadings at any stage of the proceedings but the proviso clearly states that no application for amendment shall be allowed after the trial has commenced and unless the Court comes to the conclusion that inspite of due diligence the parties could not have raised the matter before commencement of the trial. In the present case, it cannot be stated that plaintiff has acted with due diligence at any stage of the suit. On the contrary, the plaintiff with reference to the same documents has already moved applications for amendment which were partially allowed and the present application again is found and has reference to the same document. The plaintiff is seeking to establish now an entire new cause of action and a new relief, which are bound to affect the defendant prejudicially. Further more, it would even change the nature of the suit. Violation or infringement of confidential information and exclusive right of the plaintiff to exploit the technical knowhow could have been claimed by the plaintiff in the previous amendment. The obvious conclusion thereof is that the plaintiff would be deemed to have obtained the relief, if any, available to the plaintiff when he sought the earlier amendment. The substantial amendments prayed for were allowed in the previous order and now the plaintiff intends to add entirely a new dimension to the case of the parties. Once an amendment prayed for introduces an entirely new dimension to the case of the parties, adding a cause of action distinct from the one pleaded and attempting to claim a relief which was earlier available to the plaintiff and given up, then the plaintiff cannot be said to have acted with due diligence. Such conduct of the plaintiff cannot be condoned in law as it would tantamount to permitting a party to abuse the process of law. In the case of [PRECEDENT] decided on the same day, the Court held as under:
Furthermore, nothing material has been stated in the application as to why the steps were not taken earlier by the applicant. The applicant has been negligent in pursuing its right and the omission stated to have been made is without any substantial cause. The DDA in its notice which has been impugned in the present suit has claimed the sum of Rs. 96,14,969/- on account of mis-user charges and it is not necessary at this stage to require the DDA to state bifurcation of the said amount as it can be stated in evidence of the parties. The amendment would serve no purpose and in fact it will only delay the further proceedings in the suit. In this regard, reference can also be made to the judgment of Punjab and Haryana High Court in the case of [PRECEDENT] where the court held as under:
6. Learned Counsel for the petitioner relied upon the judgment of the Supreme Court in the case of [PRECEDENT] to argue that the counter claim can be raised at any time even after filing the written statement. The judgment relied upon is the judgment of the Highest Court of the land and there could be no dispute to the legal proposition enunciated in this judgment. However, the learned Counsel has not been able to show as to what advantage would be of this judgment to the petitioner, in the facts and circumstances of the case in hand. The trial court did not reject the application on the ground that counter claim could not be filed after filing written statement. The reasons given for rejecting the application, amongst others, are altering the case completely to the prejudice of the other party, filing application for amendment at a belated stage, without any sufficient cause or explanation. Further more, the defense sought to be raised by amendment appears to be an after thought. These facts were also in the knowledge of the defendants. They sought to have pleaded and proved these averments at the initial stage of the trial.
8. In view of the above enunciated principles, it is clear that the amendment sought for by the plaintiff is a mere casual attempt and is not, in any way, an essential fact required for determination of the controversies in the present suit. The plaintiff has already challenged the impugned demand of the DDA challenging the fact with regard to the purchase of the land in auction by the plaintiff. As has already been stated, whether there was unauthorised construction or not is a matter of evidence and whether DDA has any authority to impose mis-use charges or not is already a stated controversy in the suit.?
Counsel appearing for the defendant non-applicant has also relied upon the judgment of the Supreme Court in [PRECEDENT]. and [PRECEDENT] to argue that the discretion of the Court for allowing or disallowing an amendment should be exercised as per the settled norms of civil jurisprudence and where the applicant has acted callously and without due diligence, the Court should dismiss such application. She relied upon the following observations of the Supreme Court:
Learned Counsel urged that at the High Court stage, the permission to amend the written statement, but no order was passed by the High Court and, therefore, we may permit the amendment of the written statement. In this case, what we find is that the suit was filed in the year 1980 and in the written statement neither any such plea was taken nor any issue in this regard was framed. It is too late now to permit the amendment of the written statement. We, therefore decline to permit the appellants to amend the written statement.
In the present case, the plaintiff had ample opportunity to claim this relief right from the date of very institution of the suit which was filed in the year 2003. Even if the Deed of Assignment of 13th August, 2004 is taken as the basis for seeking these amendments, the plaintiff had admittedly filed an application for amendment of this plaint on earlier occasion also.Either the plaintiff could consciously have not taken up such pleadings in the application for amendment or could not have claimed any relief against the defendant in regard to violation of his exclusive rights of exploitation and infringement of the confidential information of the plaintiff. This is a very vital factor and cannot be ignored by the Court. A party when approaches the Court of law is expected to act with responsibility and cannot take the procedure of the Court as a hand made to frustrate the very object of the civil court for expeditious disposal of the suit. In the present case, the plaintiff has not given any cause much less a sufficient cause for not claiming these reliefs in the earlier amendment application. The law comes to the rescue of a litigant who acts with due diligence and does all that is demanded of him in law and equity. In the present case, the applicant has failed to satisfy any of these ingredients. The amendments sought for by the plaintiff are, in no way, essential for determining the controversies raised and reliefs prayed for by the plaintiff in the suit. Plaintiff having not claimed any of these reliefs for all this time, now cannot be permitted to materially alter the entire nature of the suit to the serious prejudice of the defendant.
6. By way of amendment, a party may wish to introduce another plea based on same facts or may elucidate the facts pleaded or even may to some extent withdraw or explain withdrawal of an admission but such acts have to be consistent with the plea already taken by the party praying for amendment. In the case of [PRECEDENT]. , the Supreme Court held that an admission by a party may be withdrawn or may be explained away, but it is equally a settled principle of law that such amendment should not be destructive of the original case pleaded by the party and must not cause serious prejudice to the other side.
7. In the case of [PRECEDENT], the Supreme Court has held as under:
In the present case, once the defendants in their joint written statement clearly admitted that 7 properties out of 10 were joint family properties wherein the plaintiff had 1/3rd share and they had 2/3rd undivided share, it must be held that there was no contest between the parties regarding 7 items of suit properties in [SECTION] The trial court was, therefore, justified in framing the issues concerning only remaining three items for which there was dispute between the parties
Even the grounds made out in the application were not justified. Consequently, there is no question of taking an inconsistent stand which would not have affected prejudicially the plaintiff as wrongly assumed by the High Court. Consequently, it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiffs' case it could not be allowed
8. The Punjab and Haryana High Court In the case of [PRECEDENT], decided on 23.9.1999, court held as under:
Now by way of the amendment the plaintiffs (applicants) want to challenge the very correctness of the said family settlement. The applicants also prayed that the said agreement is a result of fraud which seems to have been played upon their predecessor-in-interest [ENTITY]. This amendment at the face of it amounts to withdrawal of an admission. A party in given circumstances may be permitted to explain the circumstances in which an admission was made and it may explain so by different facts. Here the applicants not only wish to withdraw a definite and categorical admission but also wish to set up a contradictory plea which, in fact, would negate the original case pleaded by the plaintiffs. If the application is allowed, it will amount to complete alteration of a cause of action and defendant would be called upon to meet absolutely a new case which shall certainly be prejudicial to them. The defendants have already closed their defense on the pleadings of the plaintiffs and merely because plaintiffs choose to withdraw their admission, the defendants cannot be put to fact totally a new case and that too adversely and prejudicially effecting the pleas taken by the parties to the suit.
9. Now we would revert to the facts of the present case in the light of the above principles. The provisions relating to amendment of pleadings neither can be permitted to be used as a lever to frustrate the due process of law nor can they be permitted to be utilised as an instrument for setting at knot the entire progress of the case which has already matured into passing of a decree, by filing an application for amendment at the appellate stage and that too on a frivolous or a baseless plea. In the present case, the plaintiff had filed a suit for possession and recovery of damages on the ground that she was owner of the property by virtue of a registered sale deed and will dated 06.10.54 and 25.2.1969 respectively. This suit was contested primarily by the appellant as defendant No. 1 before the trial court on the ground that the plaintiff was not owner of the property and defendant No. 1, in fact, had purchased the property and even raised construction thereupon after incurring huge expenditure. Now in the amendment application, the applicant wishes to raise a plea that the land has vested in the Government and the suit is barred under [SECTION] of the [ACT] as it has vested in the Government, free from all encumbrances in terms of award No. 6/C-71-72. Admittedly, the suit was filed by the plaintiff in the year 1988 and was taken up for hearing for the first time before the court on 24.11.1988. In other words, the applicant ought to be fully aware of the acquisition proceedings for which notification would have been issued much prior in time than passing of the award. No details or facts have been stated in the application except a bald plea that he came to know of the acquisition in September, 2001 when he visited the office of the Tehsildar. If the applicant was the owner of the property as claimed by him before the trial court, he ought to have received notices from the acquisition authorities. Nothing in this regard is stated in the present application. According to the respondent/plaintiff, she has stated on an affidavit before this Court that the land/property in question has never been subject matter of any acquisition proceedings under an Award and in terms of the notifications issued by the Land Acquisition Deptt., the built-up properties are exempted from acquisition. The present application has been filed by the applicant and in fact prepared on 9.10.2001 without any plausible or reasonable explanation for such inordinate delay. The application ex facie appears to be abuse of process of law. In the event, the application is accepted, it would tantamount to re-trial of the suit on an issue which even remotely was not the subject matter for determination before the court. In terms of the original written statement filed by the appellant, he had claimed to be owner of the property, as such, he is estopped from taking the present plea that the Government of India is owner of the property by virtue of its being vested in the State in terms of [SECTION] of the [ACT]. This plea is not only in conflict with the original plea taken by the applicant but in fact is destructive of the entire defense of the appellant taken before the trial court. A party cannot be permitted to plead that the party is the owner and after framing such a plea, to seek amendment of the pleadings to state that a third party, but the parties to the lis, is owner of the property. The parties will have to lead evidence as a fresh controversy has been raised in relation to acquisition proceedings, title of the property and whether the land was exempted under the notification. It would amount to denovo trial completely on a different cause of action. The effect of the amendment sought would be to cause serious prejudice to the rights of the plaintiff in whose favor the trial court has decreed the suit for possession. Contradictory destructive pleas cannot be taken and particularly when they have the effect of completely altering the cause of action and introducing a new cause of action which could not be even remotely connected with the determination of questions subject matter of the suit.
10. Besides the stated principles as above, we consider it useful to refer to a Division Bench judgment of this Court in the case of [PRECEDENT], where the court held as under:
a defendant is always at liberty to rebut this presumption by proving that the better title is in himself and (3) A defendant is not allowed to set up the defense of Jus tertiii, as it is called; that is to say he will not be heard to allege, as against the plaintiff's claim, that neither the plaintiff nor the defendant, but some third person, is the true owner. The principle is ?Let every man come and defend his own title. As between A and B the right of C is irrelevant.? In this analysis of the legal position we are supported by the decision of the Supreme Court in [PRECEDENT] .
With respect, we have no reasons to differ with this view and would apply this principle squarely against the appellant who had pleaded title to the property.
11. Ergo, for the reasons afore-recorded, we find no merit in this application and would dismiss the same with costs which are assessed at Rs. 10,000/-.
12. The application ([CASE NUMBER]) is disposed of.