C.R. No.7814 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7814 of 2010 Date of Decision: 01.12.2010 Divya Jain .....Petitioner Versus Vijay Pal and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Mahavir Sandhu, Advocate for the petitioner. L. N. MITTAL, J (ORAL) Defendant No.1-Divya Jain has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to assail order dated 15.11.2010 Annexure P-6 passed by learned Civil Judge (Junior Division), Jagadhri thereby dismissing application Annexure P-4 moved by defendant No.1-petitioner for amendment of written statement. Petitioner alleged in his application Annexure P-4 that due to inadvertence and in spite of due diligence, he could not plead in the original written statement that he is bona fide purchaser of the suit property after scrutinizing the relevant record and, therefore, his rights are protected under Section 41 of the Transfer of Property Act and other legal provisions. The said plea is now sought to be taken by amendment alleging that it is a legal plea. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that proposed amendment is a legal plea and it could not be taken C.R. No.7814 of 2010 -2- earlier in spite of due diligence and, therefore, proposed amendment should have been allowed by the trial Court. I have carefully considered the aforesaid contention, but find the same to be untenable. If defendant No.1 had purchased the suit property after scrutinizing the relevant record, it is not explained as to why he could not take this plea in the original written statement even after exercise of due diligence. If defendant No.1 had exercised due diligence, he could certainly take this plea in the original written statement. Additionally, defendant No.1 also alleged in his application Annexure P-4 that this plea could be taken due to inadvertence. It would depict that he did not exercise due diligence as alleged by him. The proposed amendment also cannot be said to be legal plea as urged by defendant No.1 in the application because this plea is basically a plea of fact or at best involves mixed question of law and fact. Proviso to Order 6 Rule 17 of the Code of Civil Procedure lays down in mandatory terms that amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not raise the said plea at earlier stage in spite of due diligence. In the instant case, amendment application was moved long after the commencement of trial. The suit was instituted in the year 2004. The amendment application was moved in the year 2010. Plaintiff has already closed his evidence and the case is at the stage of defendants' evidence and it appears that some evidence has already been led by the defendants. Consequently, proposed amendment of written statement cannot be permitted at this stage in view of aforesaid mandatory provision of law. C.R. No.7814 of 2010 -3- For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned order of the trial Court. The revision petition lacks any merit and is accordingly dismissed in limine. 01.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE