C.R. No. 4018 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4018 of 2010 Date of decision: 20.07.2010 Sukha Singh .....Petitioner Versus Ram Saroop ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA Present:- Mr. Dhirinder Chopra, Advocate, for the petitioner. VINOD K.SHARMA, J. (ORAL) This revision petition is directed against the order dated 27.5.2010, vide which the application moved by the petitioner for amendment of the written statement stands declined. The plaintiff/respondent filed a suit for specific performance of agreement dated 19.7.2005 executed by the defendant/petitioner in favour of the plaintiff/respondent to sell land measuring 41 kanals. The petitioner received a sum of Rs.50,000/- (Rupees fifty thousand only) in cash from the plaintiff/respondent as earnest money on the date of execution of the agreement i.e. 19.7.2005. Thereafter, another sum of Rs.10,000/- (Rupees ten thousand only) and Rs.60,000/- (Rupees sixty thousand only) was paid to the defendant/petitioner on 1.6.2006. Consequential relief of permanent injunction was also sought. After the issues were framed, plaintiff/respondent led evidence in support of the case. After the petitioner closed his evidence, the defendant/petitioner moved an application for amendment of the written statement by pleading therein that due to inadvertance, the defendant C.R. No. 4018 of 2010 -2- could not raise the plea qua his signatures having been taken on the agreement by taking benefit of drunkenness of the defendant/petitioner. It was also pleaded in the application, that the amendment sought was not to change the nature of the suit, and that the amendment being necessary for adjudication of the case. The application moved by the defendant/petitioner was opposed by the plaintiff/respondent by taking preliminary objection that amendment could not be allowed after commencement of the trial in view of the law laid down by the Hon'ble Supreme Court in Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji N., 2007(1) CCC 500 (SC). The learned trial Court on consideration recorded a finding that the written statement was filed by the defendant/petitioner on 20.11.2006, whereas the application for amendment was moved on 4.3.2010 after the conclusion of evidence of the plaintiff. The defendant/petitioner thereafter availed number of opportunities to lead evidence. The learned trial Court held that the amendment could not be said to be such which could not be known to the defendant/petitioner with due diligence. The plea that the amendment sought was to elaborate the defence was no accepted. The learned trial Court also observed that the law that all amendments which are just and necessary for the decision of case are required to be allowed, but this was not the case where amendment could be allowed as last opportunity was granted to petitioner for leading evidence that too subject to payment of costs. Learned counsel for the petitioner challenged the impugned order by contending, that the learned trial Court dismissed the application merely for the reason that the amendment sought was after C.R. No. 4018 of 2010 -3- the commencement of the trial, therefore, the order cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, 2006(2) RCR (Civil) 577, wherein the Hon'ble Supreme Court has laid down, that it is mandatory on the Court to allow all amendments which are necessary for the purpose of determining the real questions in controversy between the parties. The Hon'ble Supreme Court in referred case further held that the plea of amendment should be liberally allowed, and all bona fide amendments necessary for determining real questions in controversy between the parties specially when the basic structure of the suit is not changed with such an amendment should normally be allowed. The learned counsel for the petitioner referred to this judgment to contend that while considering the application for amendment, the learned trial Court could not go in the merit of amendment. This authority cannot advance the case of the petitioner as the learned trial Court did not reject the amendment sought by the petitioner on merit of the plea raised, but had rejected the amendment for the reason that the application under Order 6 Rule 17 of the Code of Civil Procedure was moved after commencement of the trial that too after the plaintiff/respondent had closed his evidence and the defendant/petitioner had taken number of opportunities to conclude his evidence but he failed to do so. The learned counsel for the petitioner thereafter referred to the judgment of the Hon'ble Supreme Court in Pradeep Singhvi and another Vs. Heero Dhankani and others, 2004(13) SCC 432 to contend C.R. No. 4018 of 2010 -4- that the amendment even if sought after the commencement of the trial when it is necessary for determining the real questions in controversy between the parties, is to be allowed. This judgment again cannot apply to the case in hand. Finally the reliance was placed on the judgment of the Hon'ble Supreme Court in Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others, 2007(2) RCR (Civil) 830 to contend that the amendment in case of written statement has to be more liberally allowed than in case of plaint, as in the written statement defendant is entitled to take new defence and also plead inconsistent stand. The Hon'ble Supreme Court in Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others (supra) has observed in para 18 of the judgment, that proviso to Order 6 Rule 17 of the Code of Civil Procedure was not applicable to the case, as the trial of the suit had not yet commenced. This judgment also does not advance the case of the petitioner. Even otherwise amendment sought is not such which will finally determine the controversy between the parties, as the petitioner has already taken a defence in the written statement. The amendment sought was within the knowledge of the defendant/petitioner when the written statement was filed. In spite of this, the petitioner waited till the plaintiff had concluded his evidence and further availed number of opportunities to lead evidence. The discretion of the learned trial Court in refusing the amendment of written statement, therefore, cannot be questioned, as the learned trial Court was right in not allowing the amendment application filed by the petitioner C.R. No. 4018 of 2010 -5- after the commencement of the trial, in view of the law laid down by the Hon'ble Supreme Court in Vidyabai and others Vs. Padmalatha and another, 2009(1) RCR (Civil) 763. No merit. Dismissed. (Vinod K. Sharma) Judge July 20, 2010 R.S.