C.R. No. 7517 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.R. No. 7517 of 2009 (O&M) Date of decision : 8.4.2010 ... Sahib Singh and another ................Petitioners vs. Kuldeep Kumar and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Deepak Sharma, Advocate for the petitioners Sh. R.N. Lohan, Advocate for respondents No. 1 and 2. ... K.C. Puri, J. (Oral) This is a petition under Article 227 of the Constitution of India for quashing of impugned order dated 12.11.2009 (Annexure P- 5) passed by Civil Judge (Junior Division), Ambala, vide which the application filed by defendants No. 2 and 3, now petitioners, for amendment of the written statement, was dismissed. Briefly stated, Kuldeep Kumar and Sanjay Kumar filed a suit for specific performance on the basis of agreement to sell dated 2.11.2002 against Sukhdev Kumar and present petitioners Sahib Singh and Jasbir Singh. That suit was resisted. Thereafter, an C.R. No. 7517 of 2009 -2- application for amendment was filed by defendants No. 2 and 3 for amendment in the written statement. Defendants No. 2 and 3 wanted to take the plea of bona fide purchasers and that there is collusion between the plaintiffs and defendant No.1. That application was resisted by the plaintiffs – now respondent No. 1 and 2 and ultimately, the same was dismissed vide impugned order. I have heard counsel for the both sides and have also gone through the record of the case. The relevant portion of provisions of Order 6 Rule 17 CPC is reproduced as under:- “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all just amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 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.” The main stress of counsel for the respondents is that no application for amendment shall be allowed after the trial has commenced and it is submitted that trial in this case has already commenced and in view of authority reported as Ajendraprasadji N. C.R. No. 7517 of 2009 -3- Pande and another vs. Swami Keshavprakeshdasji N. and others 2007 (1) RCR (Civil) 481, the amendment cannot be allowed. The law of amendment, especially the written statement is liberal. The delay in filing the application for amendment is not a ground to disallow it. The defendants have taken the plea that they were not in the knowledge of the fact that plaintiffs and defendant No.1 are inter se related. So, on that account, the above said plea could not be taken earlier. So, from the perusal of the bare provisions, it is revealed that in case 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 that case the amendment can be allowed. The stage of the commencement of trial has been adjudicated by the Apex Court in authority reported as Baldev Singh and others vs. Manohar Singh and another AIR 2006 Supreme Court 2832 (1). The relevant para 17 of the said judgment is reproduced as under:- “17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court C.R. No. 7517 of 2009 -4- and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court.” From the bare perusal of the said para, it is clear that commencement of trial means examination of witness, filing of documents and addressing of arguments. The aspect of delay in filing an application has also been considered in this case. So, in view of Baldev Singh's case (Supra), the trial Court should have allowed the amendment. So, far as Ajendraprasadji N. Pande's case (Supra) is concerned, that authority is distinguishable to the facts of the present case. In that case, in para No. 59 of the judgment, it was observed by the Apex Court that parties were litigating without any basis. The relevant para No. 59 stands reproduced as under:- “It is sad and unfortunate that the Swamijis/Sanyasis/ members of the Sangh seem to have paid their attention more to litigation than to the propagation of the teachings of Swami Narayan. This situation should change. If the time, energy and money spent on C.R. No. 7517 of 2009 -5- litigations and feuding had been spent for carrying on the wishes of the founder of the institutions, things would have reached very great and amazing heights. We have, therefore, to voice our anxiety in this matter and request that the system and administration should be fairly and properly bridled, to prevent recurrence or repetition of feuds, which have already to some extent shattered the reputation of this great majestic institution, which has very vast resources and assets. Therefore, it is high time that proper remedial measures are taken by all concerned.” So, in view of the above discussion, I am of the considered view that by exercising due diligence, defendants could not plead facts narrated now and otherwise also, their case is covered by exceptions as envisaged under Order 6 Rule 17 CPC. Consequently, the impugned order dated 12.11.2009, stands set aside and the application for amendment stands allowed on payment of costs of Rs.3,000/-. The petition stands disposed of. The order be conveyed to the concerned Court. ( K.C. Puri ) 8.4.2010 Judge chugh