CR No.818 of 2008 - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.818 of 2008 DATE OF DECISION: 22.1.2010 **** Darshan Singh . . . . Petitioner VS. Iqbal Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Ms.Monika Jalota, Advocate for the petitioner. Mr.Vishwajit Bedi, Advocate for the respondent. **** RAKESH KUMAR JAIN J. The petitioner has challenged order dated 1.12.2007 passed by the Additional District Judge, Patiala dismissing his application for amendment of the written statement during the pendency of the appeal. Suit for possession filed by the plaintiff was contested by the defendant on the ground of having become owner by way of adverse possession. The suit was decreed against him on 12.2.2002. Defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) in order to add paragraphs No.4, 5 and 8 to take the plea that the suit is time barred and the Court has no jurisdiction to try and decide the same. He also wanted to add the pleading that Rashpal had given an affidavit in his favour admitting his possession without payment of Batai, Chakota, rent etc. CR No.818 of 2008 - 2 – The application was contested by the plaintiff on the ground that amendment sought was within the knowledge of the defendant right from the beginning of the suit. Therefore, the same should not be allowed. The learned First Appellate Court dismissed the application with the following observations: - “By way of amendment, the applicant/appellant wants to take the objections in the written statement, regarding limitation and jurisdiction of the court to try and decide the court and the suit being bad for the non-joinder of necessary parties. It has been contended that inadvertently these pleas could not be taken earlier. But, I do not find any substance in the contention of the ld. Counsel for appellant. The plea sought to be taken by the appellants were well within their knowledge right from the institution of the suit. So, there is no justification for allowing the present application for amendment of written statement. Reliance in this respect can be placed upon Ajendraprasadji N. Pande & anr. Vs. Swami Keshavprakashdasji N. & Ors. 2007(1) RCR 35, wherein it was held by Hon’ble Apex Court that no facts are pleaded nor any ground is raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised and the amendment in the written statement was not allowed. So far as the case law cited by ld. Counsel for the applicant as Ram Kumar Vs. Surinder 2002 (2) Civil Court Cases 13 is concerned, the same is of no help to the applicant, as the same being not applicable to the facts of the present case. In that case the amendment was allowed regarding the facts, which were not in the knowledge of the party at the time of filing of its pleadings, but this is not the case in the present case. As such the proposed amendment is not required to be allowed. So the CR No.818 of 2008 - 3 – instant application is declined being without any merit”. Learned counsel for the petitioner has argued that in case of amendment of the written statement, the defendant can even take inconsistent plea which should be liberally allowed by the Court. On the other hand, learned counsel for the respondent has argued that after the amendment in Order 6 Rule 17 by virtue of the Code of Civil Procedure (Amendment) Act, 2002, parties to the suit, seeking amendment has to satisfy the Court that despite due diligence, the matter could not be raised before the commencement of the trial. In this regard, learned counsel for the appellant has relied upon a decision of the Apex Court in the case of “Vidyabai and others Versus Padmalatha and another” 2009 (1) RCR (Civil) 763, in which it has been held that the Court can allow the amendment before the commencement of the trial and not thereafter. It was also held that proviso to Order 6 Rule 17 of the CPC is couched in a mandatory form. In the present case, present application has been filed during the pendency of the appeal without satisfying the Court as to why this plea was not taken earlier as the plea of limitation and jurisdiction was available to the defendant when the written statement was initially filed. Thus, in these circumstances, I do not find any error in the jurisdiction of the Court below in passing the impugned order. Hence, the present revision petition is dismissed. (RAKESH KUMAR JAIN) January 22, 2010 JUDGE Vivek