IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 190 of 2010 Date of decision: 29.09.2010 Budh Dev & others …Petitioners. Versus Harcharan Dass …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1No. For the petitioners: Mr. Naresh K. Thakur, Advocate. For the respondent: Mr. Anup Rattan, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 18th May, 2010, whereby the application filed by the petitioners (hereinafter referred to as ‘the defendants’) for amendment of the written statement has been rejected. 2. Brief facts of the case are that the respondent (hereinafter referred to as ‘the plaintiff’) filed a suit claiming that he is entitled to half share of the offerings of all kinds and income of Mata Chintpurni Temple, in respect of the share of deceased Tarlochan Dass, s/o Shri Chhaju, who admittedly was his maternal grandfather. The defendants are the grandsons of Tarlochan Dass. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 This suit was filed in the year 2001 and it appears that the suit remained pending for eight years and, thereafter, the evidence of the defendants was recorded sometime in the year 2009. When the suit was fixed for arguments, an application was filed for amendment of the written statement, in which the plea sought to be raised was that married women are not entitled to any share of offerings of the temple as per custom and tradition of Pujaries / Baridars of Mata Chintpurni Temple. This application has been rejected on the ground that it raises a pure question of law and the defendants have not been able to show any reason why this plea could not be taken at the time of filing of the written statement. 3. At the out set, I may say that this is not a pure question of law. The defendants allege that married girls are not entitled to any share in the offerings of the Temple as per custom and tradition. Custom and tradition are not questions of law, but have to be established by leading evidence. Even, with regard to the second plea that there has been lack of diligence on the part of the plaintiff, I am not in agreement with the learned trial Court. A party can only tell the counsel about the facts. The legal inferences from the facts are to be put into the written statement by a counsel. 4. It is true that the application for amendment of the written statement has been made at a highly belated state, but the amendment does not, in any manner, change the nature of the dispute between the parties. The basic dispute remains the same, i.e. whether the plaintiff is entitled to a share in the offerings or not. 3 5. Mr. Anup Rattan, learned counsel for the respondent, has placed strong reliance on the judgment of the Apex Court in Revajeetu Builders and Developers versus Narayanaswamy & sons and others, (2009) 10 SCC 84 and also submits that the defendants cannot be permitted to raise this plea, since a fresh suit on this cause of action would be barred. As pointed out above, the suit has been filed not by the present petitioners, but by the respondent. How can there be a bar to a suit of the petitioners since they are not the plaintiffs in the present case? 6. The Apex Court in the case relied upon by the learned counsel for the respondent has held as follows: “On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause suh prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” 7. I have given my careful consideration to the observations of the Apex Court and I find that the application cannot be said to be mala fide. In fact, Mr. Naresh K. Thakur, 4 learned counsel for the petitioners-defendants has made a statement at bar that even in case, this amendment is allowed, no fresh issue will arise since the matter in dispute will be covered by the issues already raised. He also submits that no fresh evidence shall be led by the defendants in support of this plea. Therefore, it cannot be said that this application has been filed with the purpose to delay the proceedings. 8. In view of the above discussion, the petition is allowed. The defendants are allowed to amend the written statement subject to payment of Rs. 3,500/- as costs to be paid to the plaintiff on the date fixed for appearance before the learned trial Court. The defendants have made a statement at the bar that they do not want to lead any evidence except to place on record certified copy of a judgment, which they may do on the said date. The plaintiff shall, however, be entitled, if he so desires, to lead evidence on the question now raised. The parties through their counsel are directed to appear before the learned trial Court on 26th October, 2010. In case, the plaintiff wants to lead any evidence on this issue, the said evidence shall be examined in the month of November itself and, thereafter, the matter shall be heard and disposed of latest by 31st December, 2010. (Deepak Gupta) Judge September 29, 2010 (rajni)