1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 3023 of 2011. Date of Decision: 6.5.2011 *** Avtar Singh & Ors .. Petitioners VS. Gian Kaur & Ors. .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Harpreet Kaur, Advocate for the petitioners. *** ARVIND KUMAR, J. The application of the petitioners, who are some of the defendants, in the suit filed by respondents, for amendment, has been dismissed by the learned trial Court by dint of order dated 21.4.2011, necessitating the petitioners to file the instant revision petition. Heard. The application of the petitioner has been rejected on the ground that the trial has commenced and that the defendants No.5 to 8 have not shown that despite exercise of due diligence the facts sought to be incorporated in the written statement, were not within their knowledge when the written statement was filed by them. Order VI Rule 17 CPC deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. A reference can be made to the judgment of Privy Council in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249, wherein it has been held as follows:- 2 “ All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.” Following the ratio in Ma Shwe Mya's case (supra), the Hon'ble Supreme Court in the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr. 2006(6) SCC 498, has observed that amendment of plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with the same rigour in the former than in the latter case. In the case of Revajeetu Builders & Developers Vs. Narayanswamy & Sons & others 2010(1) RCR(Civil) 27, the Hon’ble Apex Court held that the basic test which should govern the court’s discretion in grant or refusal of the amendment is the satisfaction of the Court, whether such amendment is necessary for the determination of the real question in controversy or not? and the other important condition is the potentiality of prejudice or injustice which is likely to be caused to other side; ordinarily if other side is compensated by costs, then there is no injustice. 3 Adverting to the facts of present case, through the proposed amendment, the petitioners only want to plead the collusion amongst the plaintiff and remaining defendants. In other words, there is no change in the basic structure of the defence raised by the defendant. It is well settled that the amendment cannot be denied when it appears to the Court that the amendment so sought shall sub-serve ultimate cause of justice and avoid further litigation In the considered opinion of the Court no prejudice is going to be caused to the plaintiffs through the proposed amendment and they can well be compensated with costs. In view of what has been said hereinabove, the instant revision petition is allowed. The order under challenge, is quashed. The petitioners are allowed to carry out the amendment in their written statement, as prayed for in their application, subject to payment of costs of Rs.10,000/-, which shall be paid by the petitioners to the respondent No.1-plaintiff before the Trial Court. On their doing so, the learned trial Court shall take on record the amended written statement and thereafter proceed with the case in accordance with law. Keeping in view the circumstances mentioned above, this petition is being disposed of without issuing any notice to the opposite party. If respondents are summoned to contest this litigation, they will have to incur huge expenses to defend this case. However, liberty is granted to the respondents that if they feel dissatisfied with this order, they may move an application to recall the same. The petition stands disposed of accordingly. (ARVIND KUMAR) JUDGE May 06,2011 Jiten