C. R. No. 5309 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 5309 of 2009 Date of Decision : May 17, 2010 Municipal Corporation, Ludhiana .... Petitioner Vs. Som Nath and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harsh Aggarwal, Advocate for the petitioner. Mr. Sharvan Sehgal, Advocate for respondent no. 1. Mr. Vivek Chauhan, AAG, Punjab for respondents no. 2 and 3. * * * L. N. MITTAL, J. (Oral) : Defendant no. 3 – Municipal Corporation, Ludhiana has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 06.05.2009 (Annexure P-7) passed by learned District Judge, Ludhiana, whereby application Annexure P-5, moved by the petitioner for amendment of written statement during pendency of first appeal filed against judgment and decree of the trial court has been dismissed. C. R. No. 5309 of 2009 2 Suit was filed by Som Nath – respondent no.1. Vide judgment dated 01.11.2007 (Annexure P-4), the suit was decreed. Defendant no.3 filed first appeal against judgment and decree of the trial court. During pendency of first appeal, defendant no.3 – appellant moved application Annexure P-5 for amendment of written statement. Plaintiff sought declaration that he is entitled to pension having retired as employee of defendant no.3. The stand of defendant no.3 in its written statement Annexure P-3 was that the plaintiff had not opted for pension by submitting requisite option form at appropriate time and therefore, the plaintiff is not entitled to pension. By way of amendment, defendant no.3 wanted to add several facts, as detailed in application Annexure P-5. It was sought to be pleaded that the plaintiff had submitted an option form dated 30.11.1994 (Ex.D-1/Annexure P-1) stating that he had not opted for pension. It is also sought to be pleaded that the plaintiff, after retirement on 31.01.2001, received all his retiral benefits and the said payments were made as per option form dated 30.11.1994. It is also sought to be pleaded that the plaintiff has forged and fabricated letter dated 24.09.1994 by obtaining signatures of his superior by misrepresentation and concealment of facts. Option form dated 24.09.1994 was never placed on service record of the plaintiff and it was produced for the first time on 11.09.2001 i.e. eight months after retirement of the plaintiff. Signatures of superior of plaintiff on letter dated 11.09.2001 were also obtained by C. R. No. 5309 of 2009 3 misrepresentation and concealment of facts. Inquiry was held and it was so found in the inquiry that the plaintiff had forged and fabricated option form dated 24.09.1994. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that no evidence is to be led after proposed amendment and therefore, amendment should be allowed. On the other hand, learned counsel for respondent no.1 contended that proposed amendment cannot be allowed at appellate stage in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short – CPC). I have carefully considered the rival contentions. The plaintiff in the plaint itself specifically pleaded that he had filled in option form dated 24.09.1994 opting for pension and the said option form was duly counter-signed by his superior officer and the said option form was submitted within the stipulated period. However, in corresponding paragraph 4 of the written statement, petitioner – defendant no.3 simply pleaded that plaintiff had not opted for pension. It was not alleged that option form dated 24.09.1994 pleaded by the plaintiff in paragraph 4 of the plaint was forged or fabricated or that signatures of plaintiff's superior officer thereon were obtained by misrepresentation and concealment of facts or that the said option form is forged one. The alleged C. R. No. 5309 of 2009 4 inquiry, on the basis of which, new facts are now sought to be pleaded, had also been concluded before the filing of the suit. In spite thereof, facts now sought to be pleaded were not pleaded in the written statement. Proviso to Order 6 Rule 17 CPC lays down 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. In the instant case, the plaintiff proved the option form dated 24.09.1994 in the trial court, but defendant no.3 did not seek the proposed amendment of written statement in the trial court. In fact, the facts now sought to be pleaded by proposed amendment should have been pleaded in the written statement. It is not explained as to why the said facts were not pleaded in the original written statement. It is not the case of defendant no.3 that in spite of due diligence, these facts could not have been pleaded in the original written statement. On the contrary, it is the case of defendant no.3 in amendment application Annexure P-5 that due to inadvertent mistake, the proposed amendment could not be pleaded in the original written statement. This plea would itself depict that defendant no.3 was not diligent. In other words, it is apparent that omission to plead these facts was not in spite of due diligence. Amendment of written statement could not be allowed after commencement of trial even by the trial court. It is not established that defendant no.3 could not plead these facts in spite of due diligence. C. R. No. 5309 of 2009 5 Consequently, amendment of written statement could not be allowed at appellate stage in view of aforesaid mandatory provision contained in proviso to Order 6 Rule 17 CPC. The learned lower appellate court has also disallowed the proposed amendment inter alia on this ground. Proposed amendment cannot be allowed merely because no other evidence is to be led by defendant no.3. In view of proviso to Order 6 Rule 17 CPC, there is bar to permit defendant no.3 to make the proposed amendment in written statement. There is no illegality in the impugned order of the lower appellate court. Consequently, there is no merit in the instant revision petition, which is accordingly dismissed. It is, however, made clear that any observation made in this order shall have no bearing on the merits of the appeal pending before the lower appellate court. May 17, 2010 ( L. N. MITTAL ) monika JUDGE