Civil Revision No.1172/2010 #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1172/2010 Date of decision: 23.2.2011. Jai Narain Singh .............Petitioner v Gangapal Singh and others ..............Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr.J.P. Sharma, Advocate for the petitioner. Mr. Manoj K Tanwar, Advocate for respondent No.1. Jaswant Singh,J Contesting defendant No.1-petitioner has preferred the instant petition under Article 227 of the Constitution praying for setting aside the impugned order dated 5.2.2010 (P.1) passed by the learned Civil Judge (Jr. Division), Mohindergarh whereby his application under Order 6 Rule 17 read with Section 151 CPC for amendment of the written statement has been dismissed. Brief facts of the case are that plaintiff-respondent No.1 had filed a civil suit No.488 dated 2.11.2004 for possession of the land measuring 1 kanal 14 marla as described in the head note of the plaint (true translated copy P.2) stating that the plaintiff and contesting Civil Revision No.1172/2010 #2# defendants are co-sharers and owner in possession of total land measuring 135 kanal, 10 marla for the jamabandi for the year 1999- 2000 including the land in dispute, which is in illegal possession of the contesting defendants. Written statement (True translated P.3) was filed by defendant No.1-petitioner resisting the claim of the plaintiff and inter alia submitted that he is not in unauthorized possession of the land in dispute rather he is the owner in possession of the same since consolidation till today and he has also taken the plea of adverse possession as well. During the pendency of the civil suit, defendant No.1- petitioner filed an application dated 31.10.2009 (true translation P.4) under Order 6 Rule 17 CPC seeking amendment in para 2 of the written statement and the proposed amendment sought in the aforesaid application reads as under: “and this is also pertinent to mention here that Rect and Killa No.91//14/1 and 14/2 are adjoining and mustil and Rect No.91//14/1 is allotted to the plaintiff and on 14/2 the defendant is coming owner in possession and at the time of the consolidation the actual area of the Rect and Killa No.91//14/2 whose area in actual is 3 Kanal 12 marlas has been made 2 Kanals 16 marlas by cutting and at the spot the defendants is owner in possession on 3 kanals 12 marlas and Rect and Killa No.91//14/2 whose area instead of 3 kanals 12 marlas has been made 2 kanals 16 marlas by cutting and for the correction of the same the defendant has moved application to the Director Consolidation Haryana, Chandigarh, Panchkula and the same is under consideration and hence the plaintiff wants to illegal possession on the owned and possessed land of the defendant by taking the Civil Revision No.1172/2010 #3# undue advantage of the mistake committed by the consolidation officers while the plaintiff have no right to do so.” Notice of the application was issued to the plaintiff- respondent No.1, who opposed the same by filing a reply dated 30.11.2009, (true translated copy P.9) and submitted that the evidence of the defendants has already been closed and the case is at the advance stage and at this point of time, the amendment of the written statement is not permissible and that the application has been filed just to delay the matter by creating a fabricated story. After hearing both the parties, learned trial Court vide order dated 5.2.2010 (P.1) dismissed the application, hence the present petition. On 10.5.2010, learned counsel for the petitioner made a statement that respondent No.1 is the only contesting party being plaintiff and other respondents need not be served being not necessary party. Heard learned counsel for the defendant No.1-petitioner and plaintiff-respondent No.1 and perused the paper book. It is argued by learned counsel for the petitioner that the petitioner was admitted in the hospital and could not attend the court to properly instruct his counsel at the time of filing written statement and as such a mistake has occurred in the paragraph 2 of the written statement and these facts are very much necessary to be corrected by Civil Revision No.1172/2010 #4# way of proposed amendment as the same goes to the root of the case. It is further contended that the amendment of pleading is a procedural matter and the court should be liberal while allowing such amendment until and unless the same is malafide or causing any prejudice to the other party. On the other hand, learned counsel for respondent No.1 has defended the impugned order and submitted that the evidence of the defendants had already been closed and the case is at the advance stage and that the application has been filed just to prolong the matter. It is not in dispute that written statement in the present case was filed on 23.5.2005 and the evidence of the defendant has already been closed and the case is fixed for rebuttal and arguments for 25.2.2010. Civil suit was filed in November 2004. The law is well settled by Hon'ble Supreme Court that proviso to Order 6 Rule 17 CPC is mandatory and court should not allow the application for amendment until and unless conditions envisaged therein are satisfied and reference in this regard can be made to a judgment reported as Vidyabai and Ors v. Padmalatha & Anr 2009(1) RCR (Civil) 763, paragraph 7 of which reads as under: “By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: “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 Civil Revision No.1172/2010 #5# commencement of trial.” It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz, it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” In the present case, the defendant No.1-petitioner was well aware about the stand taken by him during all this period and he could point out the same to his counsel at the relevant time but he remained silent for the reasons best known to him. Therefore, it is evident that the petitioner was not at all diligent much less to say that he has shown due diligence rather took the matter casually. If at this stage, the plea of the petitioner for amendment is accepted, it will amount to de novo trial and prolong the disposal of the civil suit. Keeping in view the facts and circumstances discussed hereinabove, this court does not find any illegality or perversity in the impugned order dated 5.2.2010 (P.1) warranting any interference under Article 227 of the Constitution. Dismissed. 23.2.2011. (Jaswant Singh) manoj Judge