CR No. 1636 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 1636 of 2011 (O&M) Date of Decision: 31.03.2011. Lalit Kumar .......Petitioner Vs. M/s Prabhu Foods Hisar Regd. & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.S.Mamli, Advocate for the petitioner. ..... SABINA, J. Plaintiff has filed a suit for permanent injunction. Issues were framed by the trial court on the pleadings of the parties on 12.2.2007 and thereafter, the case was adjourned for plaintiff's evidence from time to time. On 21.5.2008, the petitioner moved an application seeking amendment of the written statement. Vide impugned order dated 1.4.2010, the said application was dismissed by the trial court. Hence, the present petition has been filed by the petitioner-proforma defendant. Learned counsel for the petitioner has submitted that the amendment, now sought to be made in the written statement by the petitioner, was very necessary for the just decision of the case. Although, the petitioner had earlier admitted the claim of the plaintiff by way of his written statement but now the CR No. 1636 of 2011 (O&M) -2- petitioner wanted to take up the plea that he had terminated the tenancy by serving a notice under Section 106 of the Transfer of Property Act, 1882. In support of his arguments, learned counsel for the petitioner has placed reliance on M/s Mahendra Radio & Television versus State Bank of India, AIR 1988 Allahabad 257, wherein it was held that admission in pleadings did not necessarily bind the defendant or create right in favour of the plaintiff so as to refuse amendment. Learned counsel for the petitioner has next placed reliance on Akshaya Restaurant versus P. Anjanappa and another 1996(1) HLR 85, wherein it was held as under:- “We find no force in the contention. It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 C.P.C. In permitting amendment of the written statement. After hearing learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. The petitioner has been arrayed as proforma defendant by the plaintiff. Petitioner had filed the written statement admitting the claim of the plaintiff. Now by way of amendment, petitioner wants to take up the plea that the lease CR No. 1636 of 2011 (O&M) -3- deed, executed by the petitioner in favour of the plaintiff, has since been cancelled on 20.7.2007 by serving a notice under Section 106 of the Transfer of Property Act, 1882. Order 6 Rule 17 of the Code of Civil Procedure reads as under:- “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 questions 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.” Thus, once the trial has commenced, the application for amendment of the pleadings cannot be allowed 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 the trial. Although, in the present case the issues were framed on 12.2.2007 and the notice qua termination of the lease was served, thereafter, on 20.7.2007 but in the facts and circumstances of the present case, the application filed by the petitioner seeking amendment of the written statement was liable to be dismissed as admittedly the petitioner has already filed the eviction petition against the plaintiff. Moreover, in the present case the petitioner has been arrayed as proforma defendant and CR No. 1636 of 2011 (O&M) -4- apparently, no relief has been claimed against him. In these circumstances, the judgments relied upon by the learned counsel for the petitioner fail to advance the case of the petitioner as these are based different facts. No ground for interference is made out. Dismissed (SABINA) JUDGE March 31, 2011 Gurpreet