HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.tCj N0. 3344 OF 2007 Ashwani Kumar VERSUS Prakashchand DBFENDANT Xl POST ON 1 ^ APRIL. 2008 Sd/- Dhu-endra Mishra Judge f*r HGH COURT OF CHHATTISGARH AT BILASPUR Ashwani Kum.ar, S/o Late Kanhaiya Raru Aged about 45 years, R/o. Near Swaini Hotel, Post Oflice Road, Dhaxatari, District Dhaintari (CG) IFF Prakashchand, S/o. Late Panchulal Ved, Aged about 53 vears, R./o Sadar Dhamtari, District Dhauitari (CG) Present: Mr. Manoj Paranjpe, corinsel for the petitioner. Mr. R.S. Patel; counsel for the respondent. (Passcd on)^(Apri}, 2008) This petition under Artlcle 227 of the Constitution of India is directed agatnst the order dated 10.5.2007 passed tn Civil Suit No. 106-A/04 whereby the leanied II Civfl Judge, Class-II, Dhamtari has rejected the applications of fhe petitioner/defendant under Order 6 Riile 17, Order 8 Rule (1) and Section 151 of the C.P.C. (Parties heretnafter shail be refen'ed to as per fheir description before the trial Court). z. The plaintifi' filed a suif m. Januaiv 2001 for vacant possession of fhe shop against fhe defendant with the averment that he requires the shop, which was given on rent to fhe defendant, who is dotng fhe business of betel from. the tenanted preniises, and the adjacent shop to the tenanted premises for bonafide necessity of his son, who uitends to do wholesale business ofcrockery and glassware fi-om. fhe above premises. 3. The defendaiit filed his written statement on 18.11.2002 denyuis fhe averments tn fhe plaint and also pleaded fhat fhe plauitiff is owner of 10 other shops, he had filed suits agalnst the other tenants also, however, durine pendency of fhe suit, he sold the shops to them and gave one vacant shop on rent, which shows that he does not require the shop for bona&de necessity of his son. 4. The defendant vide his application (Annexure P/3) under Order 6 Rule 17 read with Section 151 of C.P.C. proposed ainendment tn his written statement. The plainttff in his reply to the aniendment application opposes fhe saine and submitted that the application has been deliberately filed belatedly with a purpose ofdelaying the trial at the stage offinal argument. 5. Leamed counsel for the petitioner submits fhat fhe proposecl aBiendiaent is based on subsequent events as the plaintiff has ffled the suit for ejectment on the ground of bonafide necessity of his son whereas during pendency of the suit, he has transferred the shop in the year 2005 and therefore, it is necessanr for brining to fore the real controversy betoveen fhe parties to fhe suit. The defendant's application imder Orcler 8 Rule 1a-3 of CPC for brineing the sale deed on record has also been reiected. 6. Reliance 1s placed on T.he ciecisions in t.he matter of Deui Vs. Rtiwem. Ahm.ad Se, Ors.1 and Andhra Ban.k 7s. ABN 7. On the other hand, learned counsel for the respondent submits that the application for aiuendment was filed on the date when the raatter was fixed for final argum.ent on 28.4.2007. The am.endment is based on fhe sale deeds executed by the plaintiff on 29.1.2004 and 7.6.2004 and fliere is no explanation for delay of three years in filing fhe application for ' 2008 AIR SCW 1061 ' 2007 AIRSCW 4466 ^ amendment based on the facts, which took olace in the vear 2004. Proviso to Rule 17 of Order 6, CPC cleai-ly stipulates that no application for amendment shaB be allowed slter the trial has conunenced, unless the Court comes to the conclusion that UT. spite of due diligence, fhe party could not have raised fhe matter before the comm.encement oftrial. The Court below has reiected the aDplication for uroposed aiaendment in the written statement based on the sale deed executed by the plaintiff on 7.6.2004 ai-id 23.1.2004, on the ground that it is sought to be brought on record after a lapse of three years wifhout any explanation as to why written statenient could not be aniended earlier whereas fhe facts mentioned m paragraph-14(B), wliich the defendaiit intends to incorporate by way of proposed aaiendment, are already pleaded in the wntten statement in a difierent manner and substance of the aniendment is present in the written statement. Moreover, the aniendment application has been filed when the matter is flxed for final arRument and in these circumstances, the amencLment application does not appear to be bona&de. 9. I have heard leamed coiinsel for the parties. 10. In the matter of Andhra Bank2 the application for amendnient was rejected by the Special Court on the ground that the same was prefen-ed with a considerable delav with a view to statt hearing of the smt and on the second ground that the aniendiuent has no merit. The Honlsle Suprenie Court allowtng the am.endment application has observed that delay in filing the application for amendment of the written statement cannot stancl in the way of allowtag the prayer for ainendment. The only question to be considered at the tniie of deciding fhe application for amendinent would be whether such aaiendiiient would be necessary for decision of the real controversy between the parties in suit. WhUe considering the application for aniendnient, fhe Court cannot go into the question of iiierit of such am.endm.ent. 11. In fee matter of Usha Devi1 flie plattitiff moved an application for aiaendmg the plaint for correction of the description of fhe suit property. The plaintiff did not seek to aiiiend tlie plaint at an eaiiy stage tliough wrong description was pointed out by the defendants in theu" written statement and also in the course of proceedings. The application for amendinent was allowed with an observation that fhe proposed am.endment is necessaiy for bringuig to fore the real conti-oversy befriveen the parties. 12. However, ui the instant case, the plainttffs suit against the defendant/tenant was for vacant possession offhe tenanted premises for bonafide necessity of his son, fhe suit was filed in the year 2001; defendant filed his -BTritten statement on 18.11.2002; by the sale deed dated 29.1.2004 the plainttffhas transferred fhe vacant land admeasuring 25.30 sq. meter whereas bv flie sale deed dated 7.6.2004 he has traasferred his old godown situated ia 20 sq.meter area. So far as aiiiendment pertaining to the sale deed dated 7.6.2004 is concerned, the defendant in his written statement in paragraph-14 has already mentioned the above fact that the plaintiff has given fhe shop vacated by Dharamchand to one Rarnu Dewangan on rent and ofher aniendDient, which fhe plaintiff has proposed by incorporating para-14(D) relates 'to transfer of vacant land, which is not relevant for the purpose of coiitroversy beftveen the 13. In any case, the matter was fixed for final argmiients, the application for amendment is based on the sale deeds, which were admittedlv executed m the vear 2004, there is no explanation bv the defendant fhat he could not have aiiiended the written statement before commencement of trial as neither c. in his application for amendment nor Ln his af&davit any reason is assigned for moving the application belatedly. 14. In fhe matter of Usha Devi1 fhe Hon^le Supreme Court allowed fhe application for am.endment as by the sedd amendment incon'ect description of fhe suit property was sought to be con'ected. In paragraph-10 it has been observed that "we may clarify here that ui this order we do not venture to make any pronouncenient on fhe larger issue as to the stage that would niark the couimencement of trial of a suit but we simply find fhat the appeal in hand is closer on facts to fhe decision in Sajjan Kumar and foUoiving that decision the prayer for ajnendnient in the present appeal should also be aUowed", 15. Tn f.he matf.er of-Bal tr.3 in pai'a-17 fhe HonTile Supreme Court has held thus:- '17. Before we part wifh this order, we may also notice t}iat proviso to Order 6 Rule 17 CPC provides that amendment ofpleadings shall iwt be allowed when the trial o/ the suit has already commenced. For this reason, we have examined the records andfind that, infact the trial has not yet coimnenced. S appears from the records that the parties have yet to file their docu.meiztary evidence in the sv.it. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Courf caid the trial Court. Tltcct apart, commencetiwnt of t'ied as used in proviso to Order 6 Rule 17 in the Code of Civil Pi'ocedzire must be understood in the It'nited serise as meaning the final hearing of the suit, exafmnation of witnesses, fUing of doGwnents aiid addressing of arguments. As noted hereinbefore, parties are yet to file fheir docujnents, we do not find any reason to reject the application for amendinent 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 amendme'it of the written statement at any stage of the zgs." 16. If we examine the facts of the present case in the light of principles of law laid down in the above cited judgments, it is observed that on fhe date of final ai'guments, application for ' 200d(0) SCC 49S l- . ^ aiiiendment was moved bv the defendant. The trial Court considenng the fact that the application for aniendment was fUed at the fag end of trial and the defendant could not assign any valid reason for not moving the application before commencement of trial, particulaTly when the pleadtags sought to be brought on record by aniendiiient related to the sale deeds executed ui the -'year 2004, rejected fhe application for aiiiendment holdtng that the saaie was not bonafide and filed with a pm'pose of delayuig the trial. 17. For fhe aforesaid reasons, this Court is of the considered opinion that the trial Corirt has not coiimiitted any Ulegality, infirmity or jurisdictional error in rejecting the application for aniendment. The petition is wifhout merits, the sanie deserves to be dismissed and is accordingly, dismissed. However, there shall be no orderas to costs. --„-__——^ Sd/- Dhirendra Mishra Judge