CR No. 553 of 2010 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 553 of 2010 (O&M) Date of Decision: 09.08.2010 Mahender Singh ....Petitioner Versus Ramotar and another ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Kulvir Narwal, Advocate for the petitioner. Mr. Sudhanshu Makkar, Advocate for the respondent. ... Alok Singh, J. Petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 31.8.2009 whereby the Civil Judge, Jr Division, Jhajjar declined the request of the defendant seeking amendment in the written statement. Brief facts of the present case, inter-alia, are that the respondent – plaintiff herein has filed a suit for declaration and permanent injunction claiming himself to be owner of the property in dispute vide release-deed CR No. 553 of 2010 2 dated 4.9.2002 executed by Hawa Singh – defendant No.1, father of the plaintiff. Plaintiff also sought relief in the plaint that defendant No.2 be restrained from interfering in the possession of the plaintiff in the garb of the sale deed dated_8.2.2006 allegedly executed by defendant No.1 – father of the plaintiff. The case taken up by the respondent – plaintiff is that the property in question is joint Hindu Family Property in which plaintiff has right from the time of his birth. However, the father out of love and affection executed the release deed in respect of the property in dispute (Joint Hindu Family Property) in favour of the plaintiff. Defendant – petitioner filed written statement saying that the property is not a joint Hindu Family Property, rather it was self acquired property of defendant No.1 – Hawa Singh. On the basis of the pleadings of the parties, issues were framed and the plaintiff has already examined five witnesses. Thereafter, defendant moved an application seeking amendment in the written statement for incorporating the plea in the written statement that defendant is bonafide purchaser and as per custom prevailing in Jhajjar District Rohtak, amongst Jats, there is no concept of Joint Family Property and hence defendant No.1 has rightly transferred the property in question vide sale deed dated 8.2.2006. The trial Court having recorded that after the commencement of the trial, amendment is not permissible unless and until party seeking amendment is able to prove that despite of due diligence, party seeking amendment was not aware about the pleas sought to be taken by way of amendment. Learned counsel for the petitioner vehemently argued that petitioner is an illiterate person and due to oversight, plea of bonafide CR No. 553 of 2010 3 purchaser and plea of custom prevailing in Jhajjar District Rohtak, amongst Jats, that there is no concept of Joint Family Property and even if the property’s ancestral, it would be deemed to be self acquired property of the person acquiring it, could not be taken in the written statement. Learned counsel for the respondent - plaintiff argued that by way of amendment, defendant wants to introduce new facts which were very well within his notice and hence after the commencement of the trial, the defendant should not be allowed to amend the written statement by introducing new pleas therein. Learned counsel for the respondent - plaintiff further argued that during the trial, all witnesses have been examined on behalf of the plaintiff and it would be too harsh and inequitable to allow the amendment at this stage. Order 6 Rule 17 CPC reads 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 such 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". From the perusal of the proviso to Rule 17, this Court has no doubt to hold that party seeking amendment has to prove that despite of due diligence, plea sought to be taken by the party was not in the knowledge of CR No. 553 of 2010 4 that party. In the present case, the defendant is not able to come out of the clutches of the proviso to Rule 17 CPC. Moreover, in view of the peculiar facts and circumstances of this case that the plaintiff has already examined five witnesses, it would be harsh and in equitable to allow the amendment to the defendant at this stage. No interference is called for. Petition is devoid of merit and hence, is dismissed. ( Alok Singh ) Judge 09.08.2010 sk.