C.R.No.3662 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3662 of 2011 Date of Decision: 6.12.2011 Raman Kant and others ....Petitioners Versus Chanan Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Satbir Rathore, Advocate for the petitioners. Mr. M.S. Dhami, Advocate for respondent Nos.1 & 2. JASWANT SINGH, J By filing the present petition under Article 227 of the Constitution, petitioners-defendants have assailed the impugned order dated 18.5.2011 (P.7) passed by the learned Additional Civil Judge (Sr. Division), Dasuya whereby their application under Order 6 Rule 17 CPC for amendment of written statement has been dismissed. Brief facts of the case are that the plaintiffs-respondent Nos.1 to 3 filed a suit No.500 dated 3.5.2004 for possession of land measuring 1 kanal 4 marla described in the head note of the plaint after removing super structure over it. After notice, the defendants- petitioners filed written statement and opposed the civil suit. C.R.No.3662 of 2011 #2# Thereafter, an application under Order 6 Rule 17 CPC for amendment of the written statement was filed by the defendants-petitioners but the same has been dismissed by the learned trial Court, hence the present petition. Learned counsel for the petitioners argues that the learned trial Court has gravely erred while dismissing their application for amendment and has caused great prejudice to the petitioners while passing the impugned order. In case the same is not set aside, the defendant-petitioner shall suffer an irreparable loss and injury. On the other hand, it is argued by learned counsel for the plaintiffs-respondents that the learned trial Court has passed the impugned order after due application of mind and needs no interference by this Court while exercising jurisdiction under Article 227 of the Constitution. After hearing learned counsel for the parties and perusing the paper book, this Court finds merit in the present petition and the same deserves to be allowed. A perusal of the application (P.5) clearly reveals that the defendants-petitioners wish to incorporate the amendment regarding the factum of previous litigation between the predecessor in interest of the parties, which became final in the year 1980 and the proposed amendment after paragraph 3 of the written statement reads as under: “The predecessors of the plaintiffs Gujjar Mal got decree for possession against the predecessors of defendants on 6.5.1978 and appeal of the predecessors of defendants was C.R.No.3662 of 2011 #3# also dismissed on 16.1.1980. They have not taken the possession of the suit property within 12 years from the date of decree. Even no execution was filed or decree for possession was executed, hence the remedy of plaintiffs to take possession of defendants or their predecessors has been lost by lapse of time. Hence, this suit of plaintiffs is not maintainable and above said judgment and decree operates as resjudicata between the parties.” A perusal of the proposed amendment reproduced hereinabove, it is apparently clear that the defendants-petitioners wish to amend the pleadings to incorporate the factum of earlier litigation, which of course is not a created or manufactured circumstance rather the same is based on judicial record and the plaintiffs-respondents will also have an opportunity to contradict the same at the appropriate stage. Moreover, the law is well settled by the Hon'ble Supreme Court in Usha Balashaheb Swami & Ors v. Kiran Appaso Swami & Ors, (2007) 5 SCC 602 that in case of amendment to the written statement, the courts are more liberal than allowing an amendment in the plaint and the relevant observation reads as under: “It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, C.R.No.3662 of 2011 #4# altering or substituting a new cause of action in the plaint may be objectionable. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.” In view of the facts and circumstances of the present case discussed hereinabove and in view of the law laid down by Hon'ble the Supreme Court in the case referred above, the present petition is allowed and the impugned order dated 18.5.2011 (P.7) passed by the learned Additional Civil Judge (Sr. Division), Dasuya is set aside. Resultantly, the application filed by the defendants-petitioners for amendment of the written statement stands allowed, however, this will be subject to payment of Rs.5000/- as costs to be paid by the defendants-petitioners to the plaintiffs-respondents by way of demand draft. Payment of costs shall be a condition precedent. Amended written statement be filed within two weeks from receipt of certified copy of this order. December 06, 2011 ( JASWANT SINGH ) manoj JUDGE