Civil Revision No. 7909 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 7909 of 2010 Date of Decision: December 03, 2010 Smt. Surinder Kaur Mann ---Petitioner versus S.Ballar Singh Samra and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Puneet Jindal, Advocate, for the petitioner *** GURDEV SINGH, J. Heard. This revision petition under Article 227 of the Constitution of India has been preferred by the petitioner-plaintiff against the order dated 19.8.2010 passed by Civil Judge(Junior Division), Jalandhar, vide which she allowed the application filed by the respondents-defendants under Order 6 Rule 17 CPC for the amendment of their written statement, so as to take up the plea that Gian Singh Samra, predecessor-in-interest of the parties and whose estate is involved in the suit, had inherited the suit property from his father, who had inherited the same from his own father and as such, the Civil Revision No. 7909 of 2010 -2- property in the hands of that deceased was ancestral property. It has been submitted by counsel for the petitioner that the respondents were required to prove that despite due diligence, the facts which they want to plead by way of amendment, were not in their knowledge and that they could not take up that plea at the time of the filing of the written statement. He also submitted that in the original written statement, they pleaded to the contrary by averring that the property in the hands of the deceased was his self-acquired property. They cannot be allowed to withdraw that admission by means of amendment. He relied upon the following two judgments of the Apex Court so far as his first argument is concerned:- (1)Vidyabai and others v. Padmalatha and another (2009)2 Supreme Court Cases 409 (2)Chander Kanta Bansal v. Rajinder Singh Anand (2008)2 Supreme Court Cases 117 It was held in Vidyabai's case (supra) as under:- “By reason of the Civil Procedure Code(Amendment)Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 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 commencement of trial. It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless Civil Revision No. 7909 of 2010 -3- 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.” What constitutes “due diligence”, was laid down in Chander Kanta Bansal's case (supra) as under:- “The word “due diligence” have not been defined in the Code. According to Oxford Dictionary(Edn. 2006), the word “diligence” means careful and persistent application or effort. “Diligent”means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary(18th Edn.), “diligence” means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. “Due diligence” means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A)”due diligence”, in law, means doing every thing reasonable, not everything possible. “Due diligence” means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.” In Chander Kanta Bansal's case (supra), application for amendment was filed after 18 years of the filing of the suit and it was in those circumstances that it was held that it cannot be said that there was such exercise of due diligence on the part of the party, applying for Civil Revision No. 7909 of 2010 -4- amendment. As is evident from the application of the respondents(Annexure P-3), they specifically stated that the amendment sought for was not in their knowledge despite due diligence. They were ignorant of the fact that the suit property in the hands of the deceased was ancestral and on that ground they pleaded that it was self acquired property. They also stated that on the asking of their Counsel they brought the revenue record and it transpired from that record that this property was ancestral property in the hands of Gian Singh Samra. After going through the details, a finding was recorded by the trial court in favour of the respondents that they could not take up this plea of property being ancestral despite of exercise of due diligence. It is well settled that any admission made in the written statement can be withdrawn by the defendants by showing that the same was made erroneously. It is also well settled that the amendment of the written statement stands at better footing as compared to the amendment of the plaint and the court should be liberal in allowing the amendment in the written statement. When the respondents had been able to prove that they could not take up the plea that the property is ancestral before the commencement of the trial despite exercise of due diligence and when this amendment is necessary for deciding the real controversy between the parties, it cannot be said that an illegality was committed by Civil Judge (Junior Division),Jalandhar, while allowing this application. There is not merit in the revision petition and the same is dismissed. (GURDEV SINGH) JUDGE December 03, 2010 PARAMJIT