C.R. No.7090 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7090 of 2008. Date of decision:- 28.01.2009. Mohinder Kapil ...Petitioner. Versus Jai Krishan Kaushal ...Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Manish Kumar Singla, Advocate for the petitioner. JASWANT SINGH J. Petitioner-defendant Mohinder Kapil has filed the present revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 22.09.2008 (Annexure P-3) passed by learned Additional District Judge, Barnala vide which the application under Order 6 Rule 17 of the Code of Civil Procedure, filed by the petitioner has been dismissed and it was further ordered that the defendant may appear in the Court and put his signature on the written statement to cure irregularity. It is an admitted position by the petitioner himself that in pursuance and in compliance of the order dated 22.09.2008 (Annexure P-3), defendant has signed the written statement dated 22.09.2000, on 20.10.2008. The facts giving rise to the matter in controversy are as under:- The plaintiff-respondent Jai Kishan filed a suit for recovery of Rs.3,97,550/- against the defendant-petitioner and the suit was decreed vide judgment and decree dated 03.04.2001 by learned Trial Court. Aggrieved against the judgment and decree, referred above, the defendant-petitioner C.R. No.7090 of 2008 -2- filed an appeal before the learned Additional District Judge, Barnala. During the pendency of the appeal, the petitioner-defendant filed an application under Order 6 Rule 17 of CPC for amendment of the written statement by alleging that the written statement was not signed by the defendant. It is further alleged that the counsel, who was representing the defendant before the learned Trial Court, was not authorized to file the written statement as there was no instruction by him; nor the contents of the written statement were explained to the defendant and as such he has suffered a great prejudice. Although, the learned Additional District Judge, Barnala has accepted the appeal of the appellant vide judgment and decree dated 22.09.2008 (Annexure P-4) on the ground that adequate opportunities were not afforded to the defendant to produce the evidence and as such the matter was remanded back to the learned Trial Court to grant him reasonable opportunities to produce his evidence. However, the application under Order 6 Rule 17 of CPC has been dismissed vide separate order of the same date i.e. 22.09.2008 by giving the cogent reasoning. The application dated 30.05.2008 under Order 6 Rule 17 of the CPC has been appended as Annexure P-1 by the petitioner-appellant, in which, inter alia, he has sought the amendment of the written statement by putting an altogether new case and the amendment is reproduced here as under :- Preliminary objection No.3:- “3. That the pronote and receipt in dispute were given to the plaintiff by the defendant as security in lieu of the total loan of Rs.1,50,000/- availed by the defendant from the plaintiff through two different cheques bearing No.804353 dated 9.5.1997 and 804357 dated 21.7.1997 C.R. No.7090 of 2008 -3- drawn on Punjab and Sind Bank Branch Barnala worth Rs.One Lac and Rs. Fifty thousand respectively. As such the pronote and receipt are not admissible in evidence.” On merits:- Para No.2:- “2. In reply to para No.2 of the plaint it is admitted that the defendant availed a loan of Rs. One Lac only from the plaintiff through cheque No.804353 dated 9.5.1997 drawn on Punjab and Sind Bank, Branch Barnala. However, no interest was ever agreed to be paid by the defendant on the said loan amount.” Para No.3:- “3. In reply to para No.3 of the plaint it is admitted that the defendant availed a loan of Rs.50,000/- only from the plaintiff through cheque No.804357 dated 21.7.1997 drawn on Punjab and Sind Bank, Branch Barnala. However, no interest was ever agreed to be paid by the defendant on the said loan amount.” Para No.4:- “4. That para No.4 of the plaint as alleged is wrong and hence denied. It is further submitted that the pronote and receipt dated 30.10.1999 in question were executed as security in favour of the plaintiff by the defendant in lieu of the entire loan amount of Rs.1,50,000/- availed by him from the plaintiff fully detailed in paras No.2 and 3. It is further submitted that the interest was agreed to be C.R. No.7090 of 2008 -4- paid by the defendant to the plaintiff from the date of execution of the pronote and receipt.” ParaNo.5:- “5. In reply to para No.5 of the plaint (wrongly mentioned as para No.3 in the plaint) it is submitted that the defendant is not liable to pay any amount on account of the cheques mentioned in para Nos.2 and 3 as in lieu of the said amount of the said cheques, pronote and receipt mentioned in para No.4 was executed by the defendant in favour of the plaintiff as security as mentioned above in para No.4. It is further submitted that the plaintiff had been receiving the interest on the said amount of loan of Rs. 1,50,000/- from the defendant from the date of execution of the pronote and receipt, but had not issued any receipt to the defendant in this respect. The defendant is always ready and willing to repay the actual amount of loan of Rs.1,50,000/- only mentioned above in easy installments as the defendant is an idle person having no source of income.” Para No.6:- “6. That para No.6 of the plaint (wrongly mentioned as para No.4 in the plaint) is wrong and hence denied. As stated above in para No.5 of the written statement the defendant had been paying interest to the plaintiff on the loan amount of Rs.1,50,000/- mentioned above from the date of execution of the pronote and receipt. It is denied C.R. No.7090 of 2008 -5- that the plaintiff ever requested the defendant to pay back the principal amount. No cause of action ever accrued to the plaintiff to file the present suit.” A perusal of the proposed amendment sought to be incorporated by the defendant reveals that he is admitting the loan amount to the extent of Rs.1,50,000/- but he is denying the remaining Rs.1,50,000/- on the ground that the pronote and receipts dated 30.10.1999 were executed as security in favour of the plaintiff in lieu of loan of Rs.1,50,000/-. However, the case of the plaintiff is that he advanced a loan of Rs.3,00,000/-. Reply to the application was filed by the plaintiff and inter alia submitted as under:- That written statement was filed on 25.09.2000 i.e. more than seven years ago, in which the defendant took the specific plea and denied the execution of pronote and receipts as well as any other consideration and after passing of the judgment and decree, he has changed his stand in entirity due to malafide reasons. It has further been submitted that during trial, on 13.12.2000 the defendant alongwith his counsel has suffered a statement to produce the document registered Vasika sale deed No.1625 dated 04.03.1999 in response to the application dated 30.10.2000 under Order 12 Rule 2 of the Code of Civil Procedure. It is further submitted that in response to application dated 14.10.2000 under Section 45 read with Section 73 of the Evidence Act, the defendant alongwith his counsel with no objection, has given the specimen hand writing before the learned Trial Court. It is further averred that even in execution petition No.23 pending since 15.05.2001, the defendant filed his objection on 13.09.2001 and C.R. No.7090 of 2008 -6- subsequently he sought to make the payment in instalments and which is evident from an application, supported by an affidavit dated 27.05.2000. It is further submitted that the defendant has paid the instalment of the decreetal amount on 04.08.2004 amounting to Rs.65,000/- after having lost upto the Hon'ble High Court in civil revision No.1049 of 2003 dismissed on 27.02.2003. There is a huge delay for filing the present application. The perusal of the record reveals that the present revision petition deserves to be dismissed with costs. However, by taking lenient view that the defendant is already debt ridden, costs are not being imposed. The suit for recovery of Rs. 3,97,550/- was decreed vide judgment and decree dated 03.04.2001. Execution is pending since 2001. Admittedly, the revision petition No.1049 of 2003 has already been dismissed by this Court vide order dated 27.2.2003. A written statement was filed way back on 20.09.2000 and the present application for amendment of the written statement was filed on 04.06.2008 and there is no reason made out to justify the delay in filing the present application. The amendment sought to be incorporated is absolutely contradictory to the stand taken by the defendant in the written statement. There is nothing on record to suggest that any complaint has been made against the counsel, who had represented the defendant before the learned Trial Court. This is a tactic of the defendant- appellant to put the blame upon the counsel to support his unfounded allegation just to get the sympathy of the Court and it should be strongly deprecated. There is no allegation that the counsel was in connivance with the opposite party or deliberately acting against the interest of the defendant. The legal profession is a very noble profession and such acts should not be allowed to malign the reputation of the profession by putting C.R. No.7090 of 2008 -7- the blame upon the counsel in such an irresponsible manner. It is very interesting to note that the judgment and decree were passed way-back on 03.04.2001 and the application for amendment is filed on 04.06.2008. The scope of Order 6 Rule 17 of the Code of Civil Procedure is very clear and which is reproduced as under:- O.6, R.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.” A perusal of the order 6 Rule 17 of CPC, quoted above, reveals that the present case is not even remotely coming in the purview of the Order 6 Rule 17 of the CPC. Keeping in view the facts and circumstances, discussed herein above, this Court does not find that there is any perversity in the impugned order dated 22.09.2008 (Annexure P-3) passed by learned Additional District Judge, Barnala. There is no ground made out to interfere into the discretion exercised by learned Additional District Judge while entertaining the present revision petition under Article 227 of the Constitution of India. No merits. Dismissed. January 28, 2009 (JASWANT SINGH) vj JUDGE