Civil Revision No. 7361 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 7361 of 2010 Date of decision : November 11, 2010 Nirmal Kumar ....Petitioner versus Des Raj and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vikram Bali, Advocate, for the petitioner L.N. Mittal, J. (Oral) Defendant no. 1 Nirmal Kumar has filed this revision petition under Article 227 of the Constitution of India impugning order dated 19.10.2010, Annexure P/6 passed by learned Civil Judge (Junior Division), Phagwara thereby dismissing application Annexure P/3 moved by the defendants for amendment of written statement. By way of amendment, the defendants want to plead that the suit is hopelessly time bared. The defendants also want to plead that there was some family settlement according to which Tarsem Lal father of plaintiffs/respondents no. 1 to 3 was not to inherit any share in the land of his father Gondi Ram and the land of Gondi Ram was to be inherited by his other sons and daughters only. Civil Revision No. 7361 of 2010 -2- I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner contended that amendment of written statement can be allowed even at belated stage and plaintiffs can be compensated by way of costs. It was also contended that in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short, CPC) amendment of pleading can be allowed even after commencement of trial, as held by Hon'ble Supreme Court in Chander Kanta Bansal versus Rajinder Singh Anand, 2008(2) RCR (Civil) 801. I have carefully considered the aforesaid contentions but find no merit in it. Amendment application was moved by the defendants when the suit was fixed for rebuttal evidence and final arguments. According to proviso to Order 6 Rule 17 CPC, amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not have raised the matter at earlier stage in spite of due diligence. Hon'ble Apex Court in the case of Chander Kanta Bansal (supra) also held that such amendment can be allowed if in spite of due diligence the party seeking amendment could not have raised the matter at earlier stage. In the instant case, however, there is not even a plea by the defendants in their amendment application Annexure P/3 that they could not have raised this matter at earlier stage in spite of due diligence. On the contrary, they have pleaded that they could not raise this plea in the original written statement inadvertently. The use of word 'inadvertently' would depict that there was no exercise of due diligence. Even otherwise, if some family settlement had taken place in the year 1970 or prior to it, there was no reason for not Civil Revision No. 7361 of 2010 -3- pleading the same in the original written statement. As regards bar of limitation even the trial court has observed that the suit if time barred would fail even if no such plea is taken by the defendants. Section 3 of the Limitation Act specifically provides that a suit if time barred would be dismissed even if defence of bar of limitation is not raised. As regards plea of family settlement the same cannot be allowed at this belated stage. It may be added that neither in cross-examination of the plaintiffs' witnesses nor in the evidence of the defendants themselves there is any reference to any such oral family settlement. For the reasons aforesaid I find no illegality or jurisdictional error in the impugned order so as to warrant interference in exercise of power of superintendence under Article 227 of the Constitution of India. The proposed amendment could not have been allowed in view of proviso to Order 6 Rule 17 CPC. The revision petition, thus, lacks any merit and is dismissed in limine. ( L.N. Mittal ) November 11, 2010 Judge 'dalbir'