Civil Revision No. 4445 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4445 of 2011 Date of Decision: 25.7.2011 *** Naval Chopra .. Petitioner Vs. OCM India Limited & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. APS Sandhu, Advocate for the petitioner. *** ARVIND KUMAR, J. The petitioner is one of the defendants in the suit filed by contesting respondent No.1. His application filed under Order 6 Rule 17 CPC seeking amendment of the written statement has been dismissed by dint of order dated 13.6.2011, necessitating him to file the present civil revision. Heard. Order VI Rule 17 CPC deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 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.” Civil Revision No. 4445 of 2011 2 From the above, it is clear that the Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. Adverting to the facts of present case, admittedly, the application was filed when the case was fixed for evidence of defendants. The perusal of record reveals that the dispute is regarding some business transaction allegedly carried out between the plaintiff and respondent Naval Synthetics and the cheques issued by the latter in lieu of articles purchased from the former, were dishonoured. The petitioner in his written statement took the plea that he is neither partner nor related to the aforesaid firm and as such no liability can be fastened upon him. Now with the proposed amendment the petitioner wants to incorporate the factum of retirement deed dated 1.4.2001 vide which he stood retired from the partnership of the aforesaid firm. The suit was filed in the year 2002 and the defendant filed the written statement, on the aforesaid lines, in the year 2004, but he never bothered to incorporate such fact during all these years and filed the application for amendment in the year 2010, while as per his own case the alleged retirement deed pertains to the year 2001 i.e. even prior to the filing of the suit. Thus, it cannot be said that despite exercise of due diligence, the petitioner could not get the aforesaid fact incorporated in his written statement by way of an amendment, at an earlier stage. He kept the proceeding in the suit going on and when the case was at the stage of his evidence, he filed the impugned application. There is another aspect of the matter. The perusal of the impugned order reveals that the transactions allegedly carried out, in respect of which the alleged cheques were issued, were prior in time of the alleged retirement deed. Hence, it was concluded that the proposed amendment is not necessary for the adjudication of the case and the defendant can well prove his assertion in rebuttal to the evidence adduced by the plaintiff. Considering these aspects of the matter, the learned Court below rightly declined the prayer of the petitioner for amendment in the written statement. The petitioner cannot derive any benefit from the cited cases of Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale(D) Civil Revision No. 4445 of 2011 3 & Ors. 2007(4) RAJ 481, Baldev Singh & Ors. Vs. Manohar Singh & Anr. 2006(6) SCC 498, North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs 2008(8) SCC 511, Usha Devi Vs. Rijwan Ahamd & Ors. 2008(1) RCR (Civil) 840 and Shiv Dutt & Ors. Vs. Dharambir & Ors. 2008(1) RCR(Civil) 479, because, as noticed above neither the amendment sought is necessary for the proper adjudication of the case nor it has been shown that the aforesaid fact, which otherwise was in existence even prior to the filing of the written statement, could not be pleaded despite exercise of due diligence. The Court below has passed a well reasons order, which warrants no interference by this Court. Dismissed. (ARVIND KUMAR) JUDGE July 25,2011 Jiten