C. R. No. 7134 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7134 of 2008 Date of Decision : May 11, 2010 Rakesh Kumar and another .... Petitioners Vs. Satnam Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. P. S. Duggall, Advocate for the petitioners. Mr. Vinod Khunger, Advocate for respondents no.1 and 2. None for respondent no. 3. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 and 2 have filed the instant revision petition under Article 227 of the Constitution of India challenging order dated 27.08.2007 (Annexure P-5) and order dated 13.10.2008 (Annexure P-7) passed by the trial court. Respondents no.1 and 2 have filed suit against the petitioners and proforma respondent no.3. Respondents no.1 and 2 are sons of proforma respondent no.3. In the suit, respondents no.1 and 2 have C. R. No. 7134 of 2008 2 challenged sale deed executed by defendant-respondent no.3 through Attorney Kashmiri Lal, who is father of petitioners (defendant no.1 and 2), on the basis that suit property is ancestral, joint Hindu family property and defendant no.3 was not competent to sell the same. Defendant no.3 filed written statement admitting claim of the plaintiffs. However, after evidence of the plaintiffs had been closed and substantial evidence of defendants have also been recorded, defendant no.3 moved application (Annexure P-3) under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure (in short – CPC) for amendment of his written statement alleging that somebody on behalf of the other defendants i.e. defendants no.1 and 2/petitioners obtained thumb impressions/signatures of defendant no.3 on some blank papers, on which written statement on behalf of defendant no.3 was got prepared and filed in the Court. The said amendment application was allowed by the trial court vide impugned order Annexure P-5. Defendants no.1 and 2 filed application Annexure P-6 for recall of the said order. However, the said application has been dismissed by the trial court vide impugned order Annexure P-7. Feeling aggrieved, the instant revision petition has been preferred by defendants no.1 and 2. I have heard learned counsel for the parties and perused the case file. No one is appearing on behalf of respondent no.3/defendant no.3, who could be the contesting party in the instant revision petition. C. R. No. 7134 of 2008 3 Respondents no.1 and 2, who are plaintiffs in the suit, apparently have no right to contest the instant revision petition. It has to be noticed that defendant no.3 alleged in the amendment application Annexure P-3 that some person had obtained his thumb impressions/signatures on blank papers and written statement was prepared on the said papers and filed in the Court. However, defendant no.3 did not even mention whether he had affixed signatures or thumb impressions on the so-called blank papers used for preparing written statement on his behalf. On the other hand, perusal of zimni order dated 10.08.2004 of the trial court reveals that for the first time, defendant no.3 appeared in person in the trial court and prayed for adjournment for filing written statement. Thereafter, counsel appeared on behalf of defendant no.3 and after seeking one more adjournment, written statement of defendant no.3 was filed on 24.09.2004. Consequently, the amendment application could not be allowed on the bald assertion that thumb impressions/signatures of defendant no.3 had been obtained on blank paper and written statement had been prepared thereon. In fact, the trial court fell in the trap laid by plaintiffs and defendant no.3 because defendant no.3 is none else but father of the plaintiffs. Defendant no.3 moved the amendment application and counsel for the plaintiffs made statement Annexure P-4 that he had no objection to the amendment application being allowed, subject to payment of cost and thereupon, without entering into the question as to C. R. No. 7134 of 2008 4 whether the amendment application could be allowed or not, the trial court allowed the amendment application vide impugned order Annexure P-5 merely because counsel for the plaintiffs had made statement that he had no objection to the amendment application being allowed, subject to payment of cost. Proviso to Order 6 Rule 17 CPC lays down that amendment of pleadings cannot be allowed after commencement of trial 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. In the instant case, amendment application was moved almost at the fag end of the trial, and therefore, the same could not have been allowed. Defendant no.3, in the amendment application, did not even specify as to what amendment he proposed to make in the written statement. Moreover, written statement on behalf of defendant no.3 was initially filed on 24.09.2004 and the amendment application was moved on 03.05.2007 and during this long period, there were large number of dates of hearing and substantial proceedings were conducted in the suit in the presence of counsel for the parties, including counsel for defendant no.3. Consequently, it did not lie in the mouth of defendant no.3 to contend that he had no knowledge of the original written statement. Thus, examined from any angle, for the reasons recorded herein above, the impugned order of the trial court cannot be sustained. Amendment sought for by defendant no.3 in the written C. R. No. 7134 of 2008 5 statement could not have been allowed. The impugned orders of the trial court are patently illegal. The revision petition is accordingly allowed and impugned order dated 27.08.2007 (Annexure P-5) and order dated 13.10.2008 (Annexure P-7) passed by the trial court are set aside and amendment application Annexure P-3 moved by defendant no.3 for amendment of the written statement stands dismissed. May 11, 2010 ( L. N. MITTAL ) monika JUDGE