CR NO.354 of 2009(O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.354 of 2009 (O&M) Date of Decision : 06.04.2010 **** Smt. Dimple Chopra . . . .Petitioner) Versus Sh. Vishal Swara and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Siddharth Batra, Advocate for the petitioner. Ms.Shalini Gandharwa, Advocate for respondent No.1. **** RAKESH KUMAR JAIN, J. This Revision Petition is directed against the order dated 6.9.2008 passed by Additional District Judge, Gurgaon vide which an application filed by the petitioner / respondent No.2 in the probate case for amendment of written statement under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been dismissed. Controversy in this case has arisen in a probate petition filed at the instance of respondent No.1 (Vishal Swara) when the petitioner filed an application under Order 6 Rule 17 of the CPC in order to add certain facts immediately after sub para ‘X’ of para No.2 of the preliminary objections. It is alleged in the CR NO.354 of 2009(O&M) - 2 - application that petitioner had filed a suit for declaration, partition, possession, rendition of accounts and perpetual injunction against respondent No.1, which is pending in Tis Hazari Courts at Delhi. It is also alleged that at the time of filing reply to the probate petition, petitioner had narrated all the relevant facts to her Advocate and handed over necessary documents for the preparation of written statement and had categorically instructed that the pleadings as well as documents filed by her in the Civil Suit, now pending in Tis Hazari Courts at Delhi, are to be filed along with written statement in the probate case but despite that Advocate, who had prepared the written statement on 20.5.2005 did not take the plea as instructed and the petitioner could not get an opportunity to go through the contents of the written statement before filing it in the Court. Therefore, she alleges that she was unaware as to what are the facts and documents filed with the written statement. It is further alleged that petitioner being not satisfied with her earlier Advocate had changed him and had found that the plea which is now sought to be taken by way of amendment is conspicuously absent in the written statement already filed. In this background the present application was filed for the purpose of making certain averments in sub para ‘X’ of para No.2 of the preliminary objections of the earlier written statement. In reply to the application, it is alleged by respondent No.1 that the averments sought to be taken by way of amendment is already there in the written statement in different paragraphs. The attempt is basically to delay the proceedings of the probate petition and to open a pendora box for the purpose of de novo trial although as many as six witnesses have already been examined at CR NO.354 of 2009(O&M) - 3 - the instance of the probate petitioner/respondent No.1. The learned trial Court, while dismissing the application for amendment has observed that all the facts which are sought to be incorporated in the written statement by way of amendment were within the knowledge and notice of the petitioner herein, who could not escape from her responsibility of reading the written statement before filing it in the Court and blame her Advocate. It was also observed that the amendment is sought at a belated stage, therefore, it could not be allowed. Learned counsel for the petitioner has vehemently argued that defendant can take even inconsistent pleas in the written statement. It is submitted that with the proposed amendment neither the nature of the suit is going to be changed nor any prejudice is going to be caused to respondent No.1. Therefore, the same should have been allowed by the trial Court, in the interest of justice. On the contrary, learned counsel for respondent No.1 too has argued with equal vehemence that in view of proviso to Order 6 Rule 17 of the CPC which is mandatory in nature, amendment in the pleadings after the commencement of the trial can only be allowed if the Court comes to a conclusion that despite due diligence the plea sought to be raised could not be incorporated in the written statement before commencement of the trial. Whereas, it is an admitted case of the petitioner that the averments sought to be made by way of amendment was already within the knowledge of the petitioner as the same had already been taken in the pending suit before Tis Hazari Courts at Delhi and was also brought to the notice of her Advocate before CR NO.354 of 2009(O&M) - 4 - preparation of the written statement and she has admitted that she did not read the written statement, filed in the Court, before signing it. Therefore, it would not lie in her mouth to start a blame game insofar as her earlier Advocate is concerned against whom she has not taken any action before any Fora either before Bar Council or Bar Association of which that Advocate has a member. Thus, I am of the view that it is a case where the petitioner should not be given any indulgence for the purpose of granting her opportunity to amend the pleadings especially when she herself is remiss as she did not read written statement before signing it and filing in the Court. Thus, viewed from any angle, it is not a fit case where the impugned order passed by the learned trial Court should be interfered. Hence, the present revision petition, which is found to be without any merit, is dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 06.04.2010 JUDGE Vivek