C.R No. 298 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 298 of 2008 Date of decision : March 11, 2007 S.Amarjit Singh vs Devinder Singh & another CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA *** Present : Mr.Balram Singh, Advocate for the petitioner. Mr.H.S.Thiara, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** RAJIVE BHALLA,J (Oral) Prayer in this revision petition is to set aside an order, dated 14.12.2007, whereby the learned Civil Judge (Junior Division), Jalandhar has dismissed an application for amendment of the written statement. Respondent No.1 filed a suit for possession by way of redemption of the mortgaged property. The petitioner filed a written statement admitting the mortgage but asserting that the mortgage amount was Rs.3.50 lacs and not Rs.50,000/-. After parties closed their evidence, the petitioner filed an application for amendment of the written statement so as to incorporate a plea that no mortgage deed was ever executed as security and infact the amount of Rs.3.50 lacs was paid as `Pagri'. The learned trial Court dismissed the application for amendment of the written statement. C.R No. 298 of 2008 ::2:: Counsel for the petitioner submits that the facts, sought to be incorporated in the written statement, are necessary for a fair and just adjudication of the pending case. It is argued that the petitioner has already deposed in his evidence as DW-3, that he is a tenant and the mortgage deed was executed as a security for the tenancy. It is further argued that a party may withdraw or explain an admission and the trial Court, therefore, committed an error of jurisdiction in dismissing the application for amendment. Counsel for the respondents, on the other hand, states that the question is not of withdrawal or of explaining an admission but of a fresh plea and a fresh defence. The petitioner has admitted the mortgage and infact has raised a positive plea that the mortgage amount was Rs.3.50 lacs and not Rs.50,000/-. It is further submitted that as the facts, now sought to be incorporated by way of an amendment, even if true, were to the knowledge of the petitioner, prior to the filing of the suit and also during the pendency of the suit, the prayer for amendment should be declined as it discloses a lack of exercise of due diligence. Reliance is placed upon a judgment of this Court in Sukhdev Singh vs Bal Krishan, 2005(1) RCR (Civil) 459. I have heard counsel for the parties and perused the impugned order. A relevant extract of the written statement, filed by the petitioner, would be appropriate. Para 2 of the preliminary objections, and paras 3 and 4 on merits of the petitioner's written statement, read as follows:- “2. The plaintiff has concealed material facts from this Hon'ble Court, as such he is not entitled for any relief. C.R No. 298 of 2008 ::3:: The plaintiff has received Rs.3,50,000/- from the answering defendant and has only written Rs.50,000/- in the said Mortgage deed, the remaining amount of Rs.3,00,000/- was taken by him under the table in the presence of Yashpal Singh, Paramjit Singh, Varinder Kumar and Ashok Kumar etc. but the plaintiff in a mischievous manner did not disclose this fact in the plaint as well as in the mortgage deed. Xx xx xx xx xx On merits : xx xx xx 3. That the contents of para No.3 of the plaint are wrong, incorrect and hence denied. The true facts are that the answering defendant has paid Rs.3,50,000/- to the plaintiff as mortgage amount of the property. The possession was also given by the plaintiff to the answering defendant. However, the name of defendant No.1 is simply added as he is the brother-in-law of the plaintiff but at the same time the defendant No.1 did not spend any penny in the said transaction. The entire amount of Rs.3,50,000/- was arranged and paid by the answering defendant to the plaintiff in the presence of Yash Pal Singh, Paramjit Singh, Varinder Kumar and Ashok Kumar witnesses mentioned above, the entire portion is in the possession of the answering defendant and the answering defendant is doing the business of C.R No. 298 of 2008 ::4:: sports goods, items of stationery and rubber stamps under the name and style of Raman Sports, Adda Tanda, Jalandhar. The defendant No.1 has nothing to do with the said business as the said business is under the exclusive care and control of the answering defendant. 4. That para No.4 of the plaint is wrong, incorrect and hence denied. The plaintiff is not entitled for the possession of the property in question, as he has failed to perform his part of terms and conditions of the mortgage deed. The plaintiff has nothing to do with the property in question, as he has already disposed off the same to the answering defendant. It is wrong that the defendant has agreed to hand over the vacant possession in favour of the plaintiff uptill 18.11.04. It is further wrong that the answering defendant has received any legal notice dated 18.11.04. It is wrong that the answering defendant is not abiding by the terms and conditions of the mortgage deed. As a matter of fact Rs.3,50,000/- was paid by the answering defendant but in paper work only Rs.50,000/- was shown as a mortgage amount. The plaintiff want to misuse the said figure mentioned in the mortgage deed as well as in the plaint. However, Rs.3,50,000/- was received by the plaintiff in the presence of Yashpal Singh, Paramjit Singh, Varinder Kumar and Ashok Kumar etc.” A perusal of the aforementioned extract from the petitioner's C.R No. 298 of 2008 ::5:: written statement reveals an emphatic admission as to the execution of the mortgage deed. The petitioner's admission does not end here, as he proceeds to positively assert that the mortgage amount was Rs.3.50 lacs and not Rs.50,000/-. By way of amendment, the petitioner seeks to nullify his written statement and in essence file a fresh written statement based upon a fresh plea alien to the defence set up in the written statement. Circumstances permitting, admissions may be withdrawn or explained. The amendment prayed is neither a withdrawal nor an explanation of an admission but an attempt to file a fresh written statement by completely discarding the averments in the original written statement and cannot, therefore, be permitted. Even otherwise, the stage for filing an application for amendment is prior to the commencement of the trial unless for reasons to be recorded, a Court holds that a party could not have raised the plea of amendment despite the exercise of due diligence. The petitioner cannot possibly assert the facts, sought to be incorporated, were not to his knowledge before filing of his written statement or before parties concluded their evidence. It appears that the prayer of amendment is an attempt to delay the conclusion of the suit and, therefore, was rightly rejected by the trial Court. In view of what has been stated above, the revision petition is dismissed with no order as to costs. ( RAJIVE BHALLA ) March 11, 2008. JUDGE `kk'