CR NO.7213 of 2009(O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.7213 of 2009 (O&M) Date of Decision : 06.04.2010 **** Ashok Kumar Laroia . . . .Petitioner Versus Vijay Kumar and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr. Aalok Jagga, Advocate for the petitioner. Mr.Sanjiv Kumar, Advocate for respondent No.1. **** RAKESH KUMAR JAIN, J. This Revision Petition has been filed by defendant No.1 whose application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for amendment of written statement has been dismissed by Civil Judge (Sr. Divn.), Panchkula vide Order dated 12.11.2009. In short, plaintiff-Vijay Kumar filed a suit for possession by way of specific performance for an agreement to sell dated 18/12/2003 directing defendant No.1-Ashok Kumar Laroia/petitioner and defendant No.2–Parveen Kumar Khosla, who has not been arrayed as respondent in the revision petition, to execute sale deed or transfer plot No.1361, Sector 26, Panchkula CR NO.7213 of 2009(O&M) - 2 - measuring 162 Square Meters (6 ½ Marlas) re-alloted by defendant No.3 – Haryana Urban Development Authority in favour of defendant No.2, on receipt of balance sale consideration of Rs.6,09,000/- out of total sale consideration of Rs.7 lac and also prayed for decree for permanent injunction to restrain defendants No.1 and 2 not to alienate or transfer the plot in question, in any manner, to anybody else except the plaintiff. Suit was filed on 11.9.2004. Defendant No.1/petitioner filed his written statement on 2.12.2004. Issues were framed on 2.3.2005 and evidence of the plaintiff started w.e.f. 23.1.2006. The petitioner filed an application dated 26.9.2009 (Annexure P6) for the purpose of amendment of written statement in order to include following averments in para No.1 of the preliminary objection: - “as the alleged agreement to sell is neither signed by the plaintiff nor any written authorization ever given by the plaintiff. The alleged agreement dated 18.12.2003 entered with answering defendant shows that some other person have signed as purchaser, therefore, the present suit is also hit by the provisions of Benami Transaction Act, hence deserves its dismissal.” The learned trial Court while dismissing the application observed that at the time of admission and denial defendant No.1 admitted his signatures on the original agreement to sell (Ex.P1) and original receipt (Ex.P2). It was observed that plaintiff evidence has already been closed in affirmative on 27.4.2009 and despite availing three opportunities to lead evidence no single witness was CR NO.7213 of 2009(O&M) - 3 - produced by defendant No.1 till application for amendment was filed. It is also observed that neither the application under consideration disclosed the facts which allegedly came to the notice of the applicant during evidence nor it is the case of the applicant that proposed amendment was not within his knowledge. Insofar as the judgment relied upon by petitioner in the case of “Sushil Kumar Jain Versus Manoj Kumar and another” 2009 (3) RCR (Civil) 899 is concerned, the learned trial Court had observed that in that case issues were not framed whereas in the present case not only the evidence of the plaintiff is closed but also three effective opportunities have been availed of by the defendant for his evidence, which was not led. Faced with the aforesaid reasoning adopted by the learned trial Court for the purpose of dismissing the application, learned counsel for the petitioner has submitted that amendment in the plaint and the prayer for amendment of the written statement stands on different footing. The defendant can take even inconsistent pleas. In this regard, he has relied upon a decision of the Supreme Court in the case of “Usha Balashaheb Swami & Ors. Versus Kiran Appaso Swami & Ors.” 2007 (2) RCR (Civil) 830 and decision of this Court in the case of “Pal Singh Versus Ranjit Singh” 2006 (2) PLR 68. It is also submitted that no prejudice is going to be caused to the plaintiff if the amendment sought is allowed to be taken in the written statement. On the other hand, learned counsel for the respondent has submitted that for the purpose of allowing amendment either in the plaint or in the written statement stage of the suit has to be CR NO.7213 of 2009(O&M) - 4 - seen and the Court has to watch the interest of the plaintiff as well if the amendment in the written statement is going to re-open the whole case especially when the plaintiff has led his entire evidence and closed the same in affirmative. It is also submitted that after the amendment, the CPC much less in Order 6 Rule 17 of the CPC, application for amendment shall not be allowed after the trial has commenced unless the Court comes to the conclusion that despite due diligence party seeking amendment could not raise the matter before the commencement of the trial. In this regard, he has relied upon a decision of the Supreme Court in the case of “Vidyabai and others Versus Padmalatha and another” 2009 (1) RCR (Civil) 763 to contend that the trial would deemed to commence when after framing of issues the witnesses have filed an affidavit in lieu of examination-in-chief. It is also submitted that proviso to Order 6 Rule 17 of the CPC is couched in the mandatory form. I have heard both learned counsel for the parties and perused the available record with their assistance. The facts are not much in dispute that plaint and written statement were filed on 11.9.2004 and 2.12.2004, respectively. Issues were framed on 2.3.2005 and the evidence of the plaintiff has been closed on 27.4.2009. The application for amendment has been filed on 26.9.2009 in a most casual manner without disclosing anything in the application as to how the applicant/petitioner had came to know the fact which is sought to be inserted in the written statement. There is no explanation that the amendment sought was not within the knowledge of the applicant/petitioner before the commencement of the trial or he CR NO.7213 of 2009(O&M) - 5 - could not know about it despite due diligence. It is no doubt true that the Apex Court has held that Court should be liberal while allowing amendment in the written statement but it is equally true that for the sake of filling of the lacuna, in the case of defendant, the interest of the plaintiff cannot be sacrificed merely by compensating him with some cost. The whole purpose of amending the provision of Order 6 Rule 17 of the CPC by way of inserting a proviso is that the Court should not allow amendment in the pleadings after commencement of the trial if the party seeking amendment is not in a position to explain or satisfy the Court that in spite of due diligence it could not have raised the matter before the commencement of the trail, is to curtail delays in the litigation and also to prevent the process of filling of lacuna in the case of party concern, who wanted to commensurate the evidence with the pleadings which, though, was not taken at the first instance. After giving my thoughtful consideration, I am of the view that the petitioner has no case which could warrant interference by this Court in the order passed by learned trial Court. Hence, the present revision petition is dismissed, however, without any order as to costs. (RAKESH KUMAR JAIN) 06.4.2010 JUDGE Vivek