C. R. No. 5400 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 5400 of 2010 (O&M) Date of Decision : August 26, 2010 Sukhwinder Singh .... Petitioner Vs. Lakhvir Kaur and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Abhishek Arora, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : C. M. No. 21660-C-II of 2010 : Allowed as prayed for. Main Case : Defendant Sukhwinder Singh has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 07.08.2010 (Annexure P-4) passed by learned Civil Judge (Junior Division), Fatehgarh Sahib, thereby dismissing application Annexure P-3 moved by the defendant-petitioner for amendment of his written statement Annexure P-2. C. R. No. 5400 of 2010 (O&M) 2 Plaintiff-respondent no.1 was married with Jaswant Singh son of defendant-petitioner. Minor plaintiff-respondent no.2 is daughter of plaintiff no.1 and Jaswant Singh. Jaswant Singh died on 02.02.2004. Plaintiffs-respondents, vide plaint Annexure P-1, have filed suit against defendant-petitioner for grant of maintenance and also for permanent injunction restraining the defendant from alienating his property mentioned in the plaint. The defendant, in his written statement Annexure P-2, admitted the relationship of the plaintiffs with the defendant and his son Jaswant Singh (since deceased). Petitioner-defendant inter alia pleaded that plaintiff no.1 was not a good wife or daughter-in-law. At her instance, her husband Jaswant Singh started residing separately from the defendant. Plaintiff no.1 was also residing with Jaswant Singh separately from the defendant. It has also been pleaded that plaintiffs lived with Jaswant Singh till his death. However, by amendment of written statement, the defendant now wants to plead that the plaintiffs lived with Jaswant Singh, separately from other family members and after agreement of Talaknama dated 14.11.2003, plaintiff no.1 arranged second marriage with Jagtar Singh and is residing with said Jagtar Singh as his wife. The aforesaid amendment application has been dismissed by the trial court by impugned order Annexure P-4. Feeling aggrieved, defendant has preferred the instant revision petition. C. R. No. 5400 of 2010 (O&M) 3 I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that Talaknama dated 14.11.2003 was not earlier in the knowledge of defendant- petitioner and therefore, he could not plead the same and consequently, proposed amendment of written statement should be allowed. I have carefully considered the aforesaid contention, but the same is completely untenable and factually incorrect. Perusal of the amendment application Annexure P-3 reveals that the defendant alleged therein that he could not plead the aforesaid fact (now sought to be pleaded by amendment) inadvertently and due to oversight. This ground for amendment in the application would clearly depict that defendant had knowledge of the fact in question at the time of filing of original written statement Annexure P-2, but he could not allegedly plead the same inadvertently and due to oversight. It has nowhere been mentioned in the amendment application that these facts were not in the knowledge of defendant-petitioner earlier. In addition to the aforesaid, defendant-petitioner has produced alleged Talaknama dated 14.11.2003 . It would mean that the said document was in possession of the defendant because the said document could either be in possession of plaintiffs or in possession of defendant and not in possession of any stranger or third person. If the document had been C. R. No. 5400 of 2010 (O&M) 4 in possession of the plaintiffs, certainly they would not have given it to the defendant. It thus emerges that the aforesaid document was in possession of the defendant himself and consequently, he could not plead ignorance of the same. In any event, the defendant has not even alleged in amendment application Annexure P-3 that the said document was not in his possession or that the said document has been given to him by somebody else. Apart from the above, the defendant specifically pleaded that plaintiff no.1 resided with Jaswant Singh till his death. They were residing in the same village as the defendant, although allegedly separately from the defendant. Consequently, defendant had knowledge that plaintiff no.1 was residing with defendant's son till the latter's death in the same village. Jaswant Singh died on 02.02.2004. Consequently, it cannot be said that after alleged Talaknama dated 14.11.2003, plaintiff no.1 had started residing with Jagtar Singh as his wife. It may be added that Jagtar Singh belongs to a different village, whereas according to original written statement, plaintiff no.1 was residing with Jaswant Singh in the same village as the defendant. Thus, by amendment, defendant wants to withdraw the admissions made in the original written statement, but he cannot be permitted to do so. Most significantly, amendment application Annexure P-3 was moved at the stage of rebuttal evidence after both parties had produced their evidence. In view of proviso to Order 6 of Rule 17 of the Code of Civil Procedure, no amendment of pleading can be allowed after commencement C. R. No. 5400 of 2010 (O&M) 5 of trial, unless in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the instant case, the defendant, by exercising due diligence, could have certainly raised the proposed plea in the original written statement. Consequently, the proposed amendment could not be allowed long after commencement of trial and in fact, practically at the fag end of the trial. For the reasons aforesaid, I find no illegality in the order of the trial court. The amendment application moved by the petitioner has been rightly dismissed. The revision petition lacks any merit and is accordingly dismissed in limine. August 26, 2010 ( L. N. MITTAL ) monika JUDGE