IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 2088 of 2009 (M/S) Jitendra Singh, S/o Kunwar Singh, Himani Photo Studio, Saint Paul Hospital Road, Satpuli Tehsil Lansdowne, District Pauri Garhwal. ……Petitioner. Versus Narendra Singh S/o Late Keshar Singh, R/o Village Satpuli Malli, Tehsil Lansdowne, District Pauri Garhwal. ………Respondents. Mr. Navnish Negi, learned counsel for the petitioner. Date:- 10-12-2009 Hon’ble B.S. Verma J. Heard Mr. Navnish Negi, learned counsel for the petitioner. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 2-12-2009 passed by learned District Judge, Pauri Garhwal in Civil Revision No.0 of 2009, Jitendra Singh Vs. Narendra Singh and order dated 05-11-2009 passed by Judge Small Cause Court/Civil Judge (Junior Division) Lansdowne in Eviction No.2 of 2007, Narendra Singh Vs. Jitendra Singh whereby the amendment application of the petitioner has been rejected to amend the written statement. Brief facts giving rise to the present writ petition are that the respondent had filed suit for eviction against the petitioner/defendant on the ground of default of the payment of rent and for his bonafide need. Prior of filing the suit notice under Section 106 of the Transfer of Property Act 2 dated 12-02-2007, the tenancy was terminated by the respondent. The notice was also replied by the petitioner on 8-3-2007 and the defendant contested the suit by filing his written statement Subsequently, when the advocate was preparing the case for argument, the defendant was advised to amend the written statement. After the closing of the evidence by the parties an application 83-C was moved by the petitioner under Order 6 Rule 17 of C.P.C against which the objection 85-C has been filed by the respondent. By means of the amendment application, the defendant has proposed to add paragraph Nos. 14-A and 14- B to the written statement and it has been averred in the amendment application that the amount of Rs. 15,000/- was given in advance to the respondent/plaintiff and there is no default of the amount in account of the rent was paid in excess. The second plea raised by the proposed amendment in para No. 14-B is that earlier SCC Suit No. 1 of 2005 was withdrawn by the respondent/plaintiff hence the present suit is barred by principle of res judicata. The learned Judge Small Cause Court after hearing both the parties and after considering the objections filed by the plaintiff/respondent rejected the application of the petitioner/defendant. The Learned Judge S.C.C. rejected the application on the ground that no such plea was ever taken in the written statement and evidence was adduced by filing affidavit on behalf of the plaintiff/respondent and cross examination was also made on behalf of the defendant/ 3 petitioner from the witness of respondent/plaintiff and it was filed after closing of the evidence and no such permission can be given under Order 6 Rule17 of C.P.C. I have perused the impugned order as well as the order of the revisional court. By perusal of the written statement, it reveals that the petitioner/defendant himself tendered the amount under Section 20(4) of the U.P. Act No. 13 of 1972. According to respondent Rs. 15,000.00 was taken as premium not as a rent. The petitioner wants to add a plea that this amount was paid as a rent in advance. Since, the petitioner has not raised this plea in written statement and this fact was within the knowledge of the petitioner prior of filing the written statement and he has also replied the notice issued under Section 106 of Transfer of Property Act whereby his tenancy was terminated. Learned counsel for the petitioner has contended that the learned Trial court has wrongly dismissed the amendment application on the ground of delay reliance was placed on the judgment Baldev Singh and others Vs. Manohar Singh and another reported in 2006(6) SCC 498 where in paragraph No. 17, which reads as under:- “Before we part with this order, we may also notice that proviso to Order 7 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, 4 commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.” By the learned Judge S.C.C. the application has been rejected on merits as well as on ground of proviso of Order 6 Rule 17 CPC does not permit such amendment after trial has commenced. The ratio of the judgment cannot be disputed. The Order 6 Rule 17 proviso of C.P.C provides 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. I have perused the amendment application, no such plea was ever been taken by the petitioner/defendant that in spite of due diligence, he could not have raised the matter earlier. The notice was given to the petitioner under Section 106 of Transfer of Property Act for termination of the tenancy and suit was also filed on the ground of default. This plea was never taken in written statement that the amount which was paid as premium was infact the amount of advance rent paid by the petitioner. Petitioner has also filed 5 the affidavit in support of plea taken in the written statement. No such plea ever been taken by the respondent. The plaintiff respondent has also admitted Rs. 15,000/- amount was paid by the petitioner in advance i.e. premium for the shop to be rented out. The petitioner fail to prove this fact that in spite of due diligence he could not raised this plea before commencement of trial. At the stage of the argument, no such permission could be given to amend the written statement and the party cannot be permitted to withdraw its admission by way of amendment. I find no error in the order impugned passed by the Judge Small Cause Court as well as by the revisional court. The writ petition is devoid of merit and is hereby dismissed. The writ petition is dismissed. All pending applications stand disposed of accordingly. (B.S. Verma, J.) 10-12-2009 MK