Civil Revision No. 1006 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1006 of 2009 Date of decision:- 26.02.2009. Chander Kanta ...Petitioner Versus Surjit Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Nandan Jindal, Advocate for the petitioner. JASWANT SINGH J. Petitioner-defendant No.1 has filed the present petition under Article 227 of the Constitution of India for setting aside the impugned order dated 21.01.2009 passed by learned Additional Civil Judge (Junior Division) Dhuri vide which his application filed under Order 6 Rule 17 of CPC for amending the written statement has been dismissed. The brief facts of the case are as under:- A mini bus was jointly purchased by Joginder Singh and Sham Lal (deceased) by taking a loan from the Group of Finance Company, Moga. Plaintiff-Surjit Singh son of Gurjant Singh is the grand son of Joginder Singh, whereas defendants-petitioner Chander Kanta etc. are legal heirs of Sham Lal (deceased). The present suit No.89 of 21.02.2006 was filed by respondent-plaintiff for recovery of Rs.1,14,000/- (Rs.84,000/- as principal plus Rs.30,000/- on account of interest). The allegation in the suit is that Sham Lal (deceased) borrowed a sum of Rs.84,000/- on 10.07.1999 at the Civil Revision No. 1006 of 2009 -2- agreed rate of interest of Rs.2% per month and executed a pronote alongwith receipt in favour of the plaintiff. However, the defendants are denying the claim that no amount was taken by Shri Sham Lal (deceased) and therefore the suit is liable to be dismissed. During the pendency of the present suit, the present application under Order 6 Rule 17 CPC was filed for seeking certain amendments in the written statement, which are reproduced hereasunder :- “ i. That the defendants/applicants wants to add the following lines in para No.2 of the written statement in 12th line after the word “Consideration” as below “The true facts are that formerly a mini Bus was purchased by Joginder Singh and Sham Lal after advancing a loan from Deep Group of Finance Moga and they both were the partners of the Mini Bus. After the death of Joginder Singh, Surjit Singh and Gurpreet Singh minor sons of Gurjant Singh filed a suit through their mother Hardev Kaur regarding rendition of accounts, alleging that there were money truncations between Joginder Singh and Sham Lal and also alleged that after the death of Joginder Singh account was settled and two pronotes were got executed from Sham Lal in favour of Hardev Kaur and Surjit Singh minor son of Gurjant Singh amounting to Rs.84000/- each on 10.07.99 and 73.7.99 respectively. The said suit from rendition of account was dismissed on 3.1.2005. However, in the present suit, the plaintiff alleged that Sham Lal (since Civil Revision No. 1006 of 2009 -3- deceased) borrowed, sum of Rs.84000/- with a stipulation to pay interest @ 2% from the plaintiff and executed a pronote and receipt dt. 10.7.1999 in favour of the plaintiff and after admitting the contents of the pronote and receipt to be true and correct signed the same in presence of the witnesses”. Hence the present suit is not maintainable, as no amount was advanced by the plaintiff to Sham Lal through the alleged pronote and receipt dated 10.7.1999. “ The application was filed on 25.09.2008. There is no dispute that the suit is pending since 6th February, 2006, issues were framed on 25.05.2006 and case is fixed for rebuttal evidence meaning thereby the trial has been substantially completed. The plea of the defendants that proposed amendment may be allowed in view of the fact that earlier a civil suit for rendition of account, filed by Surjit Singh etc., has already been dismissed vide judtment and decree dated 03.01.2005 is not tenable. As the proposed amendment reveals that defendants were all along aware about each and every word of the amendment, sought to be now incorporated by the defendants and learned Trial Court has rightly come to the conclusion that defendants were clearly negligent in not incorporating these facts. The plea of the petitioner in paragraph 4 of the present petition that after recording of the statement of plaintiff-respondent Surjit Singh, it has come to their knowledge that earlier a mini bus was purchased by Joginder Singh and Sham Lal (deceased) after taking a loan from Deep Group of Finance Company, Moga is unimaginable. Rather, it seems that the defendant No.1- petitioner is interested to delay the matter and the defendant(s) was/were Civil Revision No. 1006 of 2009 -4- very well aware about the earlier litigation as that is of only 3rd of January 2005 and for the reasons best known to the defendant(s). The defendant(s) has/have not taken the plea in his/their written statement at the relevant time. After the amendment of the Civil Procedure Code in the year 2002, the scope of amendment of pleading is very limited and proviso to Order 6 Rule 17 clearly lays down that no application for amendment shall be allowed after the trial is commenced unless the Court comes to the conclusion that inspite of due diligence the parties could not place the matter before the commencement of trial and this provision has been considered by the Hon'ble Supreme Court in a latest judgment reported as Vidyabai & Ors. v. Padmalatha & Anr., 2009(1) RCR (Civil) 763. In this case also the matter was relating to amendment of the written statement. The relevant para 7 of the same is reproduced hereasunder :- “ 7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under : “ Provided 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 the matter before the commencement of trial.” It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due Civil Revision No. 1006 of 2009 -5- diligence the parties could not have raised the matter before the commencement of the trial. “ In view of the law laid down by Hon'ble Supreme Court in Vidyabai's case (supra) and keeping in view the fact that case is already fixed for rebuttal evidence. This Court is of the opinion that the learned Trial Court has rightly dismissed the application under Order 6 Rule 17 CPC filed by the defendant No.1-petitioner. Consequently, this petition is dismissed as there is no ground to interfere in the impugned order while exercising powers under Article 227 of the Constitution of India. February 26, 2009 (JASWANT SINGH) vj JUDGE