Civil Revision No.4411 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4411 of 2010 Date of Decision : 31.03.2011 Shaminder Singh Kang and Others .....Petitioners Versus General Public and Others ....Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Avnish Mittal Advocate for the petitioners. Mr.S.K.Chawala Advocate for respondent No.2. * * * Sabina, J. Plaintiffs have filed a suit for declaration to the effect that the plaintiffs and defendant No.2-Vijay Pal Singh Kang were in joint possession of plot No.604, Sector 69, Mohali. During the pendency of the appeal, defendant No.2 moved an application under Order 6, Rule 17 of the Code of Civil Procedure (for short “CPC”) for amendment of the written statement. Vide the impugned order, the said application was allowed. Hence, the present petition by the plaintiffs. Learned counsel for the petitioner has submitted that the application under Order 6 Rule 17 CPC filed by defendant No.2 was liable to be dismissed as the same had been filed after the commencement of the trial. The plaintiffs had already concluded their evidence. In support of his arguments, learned counsel for the petitioner has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Vidyabal & Ors. Vs. Padmalatha & Anr. 2009(1) R.C.R.(Civil) 763. Learned counsel for respondent No.2 has submitted that the application filed by defendant No.2 for amendment of the plaint was liable Civil Revision No.4411 of 2010 2 to be allowed as the pleas, now sought to be raised, were very essential for the just decision of the case. The answering defendant had come across the Will executed by his father dated 04.03.1996 and had come to know that the plaintiffs had changed their religion and hence, could not claim any share in the property of their father. Learned counsel has further submitted that if the other side could be compensated with costs then there was no injustice caused to the opposite party and the application for amendment of the pleadings was liable to be allowed. In support of his arguments, learned counsel for respondent No.2 has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & Others 2010(1)RCR(Civil)27. Order 6 Rule 17 CPC reads as under: “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.” As per the above provision, application for amendment of the pleadings should not 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 the trial. In the present case, admittedly the application was moved by Civil Revision No.4411 of 2010 3 defendant No.2 for permission to amend the written statement after the plaintiffs had concluded their evidence. By way of amendment, defendant No.2 wants to set up unregistered Will executed by his father in his favour on 04.03.1996. It has also been averred in the application Annexure P-1 that the plaintiffs had changed their religion and were not governed by Hindu law. A perusal of the application under Order 6, Rule 17 CPC Annexure P-1 reveals that no explanation has been given as to why the Will was not pleaded at the time of filing of the written statement and why the plea qua change of religion by the plaintiffs was not taken at the time of filing of the written statement. In these circumstances, the application filed by defendant No.2 seeking amendment of written statement was liable to be dismissed as the same could not be said to be bona-fide. In the facts and circumstances of the present case, it cannot be said that the plaintiffs could be compensated adequately in terms of money. Defendant No.2 had failed to establish that despite due diligence, the pleas now sought to be taken by amending the written statement could not be taken earlier. In the absence of such material, the application filed by defendant No.2 under Order 6, Rule 17 CPC was liable to be dismissed. The trial court has erred in allowing the application for amendment of written statement. The judgment relied upon by learned counsel for petitioners fails to advance the case of the petitioners as it is based on different facts. Accordingly, this petition is allowed. Consequently, the impugned order is set aside. (SABINA) 31st March, 2011. Judge Seema- II