CR No.260 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.260 of 2009 Date of decision: 19.1.2009 Kamla Devi ......Petitioner Versus Harnoor Singh (minor) through his mother and another ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rakesh Nagpal, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. Respondent No.1 filed suit for possession of land measuring 4 kanals i.e 1/6th share of the total land of 24 kanals and for setting aside the sale deed No.4173 dated 15.2.2005 for a consideration of Rs.90,000/- executed in favour of the petitioner by respondent No.2. He also sought permanent and mandatory injunction restraining the petitioner from further alienating the suit land. The petitioner contested the suit and filed the written statement dated 21.9.2006. Issues in this case were framed on 6.12.2006. Evidence of the plaintiff-respondent was closed on 15.3.2008. It was at this stage that the petitioner moved an application under Order 6 Rule 17 CPC for amendment of the written statement alleging that the plaintiff-Harnoor Singh is not the son of Jagmohan Singh son of Pirthi Singh and as such, he has no right to file the suit and he cannot claim any right over the property. The Additional Civil Judge (Sr. Division), Tohana vide impugned order dated 8.12.2008 dismissed the aforesaid application for amendment in the written statement filed by the petitioner. By way of this revision petition, the petitioner has challenged CR No.260 of 2009 2 the aforesaid order dated 8.12.2008 of the trial Court on the ground that counsel for the petitioner has not pleaded the case properly and the amendment application was filed by the petitioner with due diligence and there was no fault on his part and thus, the application for the amendment of written statement should have allowed even at a later stage. In support of his contention, the learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case Ushal Balashaheb Swami and others v. Kiran Appaso Swami and others 2007(2) RCR (Civil) 830 to contend that amendment can be allowed even after the trial has commenced. I have heard learned counsel for the petitioner. However, I find no force in his contentions. There is no dispute with the proposition as stated by the Hon'ble Apex Court in the case of Ushal Balashaheb Swami and others' case (supra). However, while summing up the proposition of law the Hon'ble Apex Court has clearly mentioned that amendment can be allowed after commencement of the trial if the Court comes to a conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial. From the facts of the present case, it is crystal clear that in the amendment application, it is not even pleaded by the petitioner that the plea required to be taken by way of amendment could not be raised before the commencement of the trial despite due diligence. Moreover, in reply to para No.2 of the plaint, the petitioner had admitted the relationship of the plaintiff and defendant No.2. There is no such averment that the said averment has been wrongly made by the counsel for the petitioner. It is also relevant to mention that issues were settled in this case on 6.12.2006 and the evidence of the plaintiff-respondent was closed on 15.3.2008 and it is, at this stage that the petitioner moved an application CR No.260 of 2009 3 for amendment. It is also not the case of the petitioner that the contents of amendment sought to be incorporated were not within his knowledge or could not be ascertained with due diligence. No reasons have been given by the petitioner not to incorporate the same in the earlier written statement. Thus, the averments to be raised by way of amendment were within the knowledge of the petitioner from the very beginning. In a case titled as Inder Pal Singh v. Bankey Bihari 2003(3) Civil Court Cases 707 (P&H), this High Court has held that no amendment of pleadings is to be permitted after the commencement of trial unless cogent reasons are shown by such a party that the matter sought to be incorporated by amendment was not within its knowledge or could not be ascertained with due diligence. In view of my above discussion, there is no merit in the present revision petition and the same is dismissed. January 19, 2009 (RAKESH KUMAR GARG) ps JUDGE