IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 218 of 2007. Date of Decision: June 24, 2008 Doli Raj & ors. ..Petitioners. Versus. Lalit Soni & ors. ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Bimal Gupta, Advocate. For the Respondent(s): Mr. Y.P.Sood, Advocate, for respondent No.1. Mr. D.P. Chauhan, Advocate, for respondent No.2. __________________________________________________________________ Deepak Gupta, J.( Oral). This petition is directed against the order dated 10.9.2007 whereby the learned Civil Judge (Sr. Div), Karsog, District Mandi, HP, rejected the application filed by respondents 2 to 4 (hereinafter referred to as the defendants 2 to 4) under Order 6 rule 17 CPC seeking amendment of the written statement. Briefly stated the facts of the case are that Shri Lalit Soni, respondent No.1 (hereinafter referred to as the plaintiff) filed a suit for specific performance of contract. It was alleged that Shri Mast Ram was the owner of the suit land measuring 0-3-9 bighas. According to the - 2 - plaintiff, Shri Mast Ram (hereinafter referred to as defendant No.1) entered into an agreement with the plaintiff on 29.7.2005 and agreed to sell his share in the suit land to the plaintiff for a consideration of Rs. 70,000/- per biswa. According to the plaintiff, he was put in possession of the suit land but despite that the defendant No.1 did not execute any sale deed in his favour. The plaintiff further alleged that the defendant No.1 vide sale deed dated 30.8.2005 had sold the suit land and defendant No.7 had sold her land measuring 0-1-10 bighas to defendants 2 to 4 but according to the plaintiff he continued to remain in possession of the suit land. After the suit was filed, defendant No.1 filed his written statement on 24.6.2006. In his written statement, he admitted the claim of the defendant No.1. On 24.6.2006 itself, defendants 2 to 4 also filed their written statements. Thereafter replication was filed and issues were framed on 23.8.2006 and the case was thereafter fixed for evidence of the plaintiff on 25.9.2006. No evidence was present on that day and the case was then listed on 24.10.2006. On that date, plaintiff and one Maninder Singh witness were present but they were discharged by the learned trial Court on the ground that counsel for defendants 2 to 4 - 3 - had requested for time to file an application for amendment of their written statement. This Court has always deprecated the practice of Courts discharging the witnesses on the request of any party that it wants to file some application. Witness should not be sent back unexamined unless the Court has no other option. Be that as it may, the witnesses were discharged and the matter was adjourned to 21.11.2006 on which date the application for amendment was filed. The grounds raised in this application were that the defendants 2 to 4 were unaware of the written statement filed by defendant No.1 and they came to know about the stand taken in this written statement only after the issues were framed and when the case was listed for evidence. It is only then that they came to know that defendant No.1 had in fact admitted the claim of the plaintiff which necessitated the amendments. The amendments sought for are in fact, in a sense, replication to the written statement filed by defendant No.1. The learned trial Court rejected this application solely on the ground that the application had been moved after the trial had commenced and, therefore, could not - 4 - be allowed in terms of the proviso of Order 6 rule 17 CPC. Order 6 rule 17 CPC reads as follows:- “17. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided 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.” Proviso to the order clearly lays down that no Court shall allow an amendment after the trial has commenced unless the Court came to the conclusion that the party seeking amendment despite due diligence, could not have raised the matter before the commencement of the trial. As noted above, defendant No.1 and defendants 2 to 4 filed their written statement on the same day Replication was filed on the next date. Issues were framed on 23.8.2006. A perusal of the issues does not show that while framing the issues it was taken into consideration that defendant No.1 had admitted the claim of defendants 2 to 4. On the next date, no witness was present and when the witnesses were present an adjournment was sought. - 5 - There is no material on record to show that copies of the written statement filed by defendant No.1 were supplied to defendants 2 to 4 also. They have specifically alleged that this was not done. If defendants 2 to 4 were not supplied copies of the written statement filed by defendant No.1, they were obviously not aware of the stand taken by defendant No.1. They came to know about the stand of defendant No.1only when they were preparing the case for evidence. Therefore, in my opinion, in the present case, the mere fact that the trial had commenced was not a ground to reject the application. Admittedly, the defendant No.1 had sold the land to defendants 2 to 4. Now he is trying to set up a new plea that he has not been paid the sale consideration in terms of the sale deed and that he was coerced into executing the sale deed. This Court at this stage cannot go into the merits of the pleas raised. The interest of justice definitely requires that defendants 2 to 4 should be afforded an opportunity to counter the allegations levelled by the defendant No.1 which allegations have been levelled against them. Keeping in view the aforesaid discussion, the present petition is allowed. The order of the learned trial Judge - 6 - dated 19.7.2007 is set aside. Defendants 1 to 4 are permitted to amend their written statement. The amended written statement has already been filed and taken on record by the trial Court. The plaintiff as well as defendant No.1 shall have the right to file replication to the same. Fresh issues, if any, arising out of the amended pleadings shall be framed, and the trial court shall proceed to decide the case in accordance with law. The prayer for amendment is allowed subject to payment of Rs.2000/- as costs which shall be paid to the plaintiff on the next date before the trial Court. Parties through their counsel are directed to appear before the learned trial Court on 28th July, 2008. The Registry is directed to ensure that record of the case is sent so as to reach the trial Court well before the date fixed. The petition is disposed of in the aforesaid terms. June 24, 2008. ( Deepak Gupta ),J. s. - 7 -