Civil Revision No.3103 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3103 of 2007 Date of Decision: March 04, 2008 Raj Rani & another ...Petitioners VERSUS Harbans Kaur & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.G.S.Bhatia, Advocate, for the petitioners. Mr.Amit Rawal, Advocate, for the respondents. ***** RANJIT SINGH, J. This order will dispose of two Civil Revision Nos.3103 of 2007 (Raj Rani & another v. Harbans Kaur & others) and 3104 of 2007 (Raj Rani & another v. Harbans Kaur & others). Civil Revision No.3103 2007 is directed against an order declining the application filed by the petitioners for amendment of the Civil Revision No.3103 of 2007 : 2 : plaint. The order impugned in Civil Revision No.3104 of 2007 is the one where the prayer for amendment of a written statement is declined. Amendment of the plaint is sought on the ground that the earlier counsel engaged did not properly advise the petitioners to seek declaration of their right, which, the petitioners now want to seek by way of amendment of the plaint regarding declaration of their tenancy right. It is pleaded that the amendment sought is considered essential and without the same the controversy cannot be effectively and completely decided. The dispute is about the tenancy of a shop, where the tenant is running a business under the style of M/s Om Motor Workshop. Tenancy was in the name of Om Parkash and after his death, his legal representatives have been acting and paying the bills of telephone etc. installed in the premises. After death of Om Parkash, the landlady had started negotiations with different persons for sale of the shop under tenancy and thus started putting pressure on the petitioners to vacate the shop. The plaintiffs accordingly had taken recourse to filing of a civil suit, where defendant-landlady has filed a written statement taking number of frivolous grounds. In the reply filed, the respondent-landlady has denied the fact if the shop was taken on rent by Om Parkash. It is further denied if the electric connection was installed by Om Parkash, which is stated to be in the name of Harbans Kaur. Other averments made in the suit have also been denied. The need to declare the tenancy rights of the petitioners as claimed is termed wrong and it is pleaded that the amendment as sought is not maintainable which would also change the nature of the suit. Civil Revision No.3103 of 2007 : 3 : The trial court after referring to the provisions of Order 6 Rule 17 CPC, has held that amendment can only be made before commencement of trial and if any amendment is sought to be made thereafter, it is required to be shown that despite due diligence the party could not raise the matter before commencement of the trial. It is noticed that the petitioners had not even made an averment in the plaint seeking amendment that this proposed amendment could not be thought of despite due diligence or that the same was not within the knowledge. It is held in Inder Pal Singh Vs. Bankey Bihari, 2003(3) Civil Court Cases 707 that no amendment of the pleadings is to be permitted after commencement of the trial unless some cogent reasons are shown by such a party that the matter sought to be incorporated by way of amendment was not within the knowledge or could not be ascertained despite due diligence. It has further been observed in Ajendraprasadji N.Pande & Anr. Vs. Swami Keshavprakeshdasji N.& Ors., 2007(1) Civil Court Cases 500 (SC) that the amendment shall not be allowed after trial has commenced unless inspite of due diligence the same could not be raised before commencement of the trial. It is viewed that the trial is deemed to have commenced when the issues are settled. Law relating to amendment of a plaint and written statement by now is fairly well settled by number of authorities pronounced by Hon'ble Supreme Court. The amended provisions of Order 6 Rule 17 CPC would basically now control the liberal approach of allowing amendment as was here-to-before available. The pleas regarding amendment of a plaint and that of a written Civil Revision No.3103 of 2007 : 4 : statement are essentially required to be differently assessed and appreciated. The courts are generally more liberal in allowing amendment of a written statement than that of a plaint. As held in the case of Baldev Singh & Ors. etc. Vs. Manohar Singh & Anr. etc. 2006 (3) Civil Court Cases 573, an amendment of a plaint and that of a written statement are not governed by exactly the same principles, though general principles may be common to both. Amendment in a written statement can be allowed to raise additional defences. Even inconsistent pleas can be permitted to be raised in a written statement, though the same may not be permissible in the case of a plaint. Adding a new ground of defence or substituting or altering a defence in the written statement would not lead to the same problem as adding, altering or substituting a new cause of action. The courts are to be extremely liberal in granting prayer for amendment of a pleading unless serious injustice or irreparable loss is caused to the other side. In view of the proviso, now introduced under Order 6 Rule 17 CPC, amendment of the pleadings is to be allowed only once it is shown that the same could not be incorporated despite due diligence. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005(3) Civil Court Cases 420, it is clearly held that where amendment is sought after commencement of the trial, it has to be shown that inspite of due diligence such amendment could not have been thought earlier. As observed in this case, object is to prevent frivolous applications which are filed to delay the trial. It can be noticed that Order 6 Rule 17 CPC, which regulates the amendments of the pleadings, was deleted by Amendment Act 46 of Civil Revision No.3103 of 2007 : 5 : 1999, but was again restored by the Amendment Act 22 of 2002. The proviso then was added to prevent application for amendment being allowed after the trial has commenced. It has now been laid down that unless Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial, the amendment cannot be permitted. As observed by the Hon'ble Supreme Court in Salem Advocate Bar Association's case (supra), this proviso to an extent curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of the trial, it is required to be shown that despite due diligence such amendment could not have been sought earlier and only then the same can be permitted. The plea of the petitioners that the amended provision would not apply in this case would also not rescue the situation in this case. The requirement of adopting a liberal approach in allowing amendment being a rule of justice, equity and in good conscience would also not help as the amendment now sought does not appear to be bonafide or necessary for determining the real controversy in question between the parties. Accordingly, the impugned order would not appear to be unjustified having regard to the facts and circumstances of this case. On the other hand, the plea raised by the petitioners in impugning the order, whereby amendment of the written statement has been declined, may not be sustained in the eyes of law. As already noticed, the considerations, which arise for allowing or declining the amendment of a written statement, are different than that of the amendment of a plaint. By way of this amendment in the written statement, the petitioners prayed for permission to delete the Civil Revision No.3103 of 2007 : 6 : words “admitted to be correct” by substituting the same as “Wrong and is denied. The plaintiff inducted the tenants Om Motors, Sartaj Motors and Navrattan Motors in property No.B XVII-52, Bagh Nauria Mal Jain, Ferozepur Road, Ludhiana and one shop of said property is in self occupation of the plaintiff.” As already noticed, the liberal approach in amendment of pleadings is further liberalised when the issue is for amendment of a written statement. In written statement even inconsistent pleas can be raised and admissions made can also be withdrawn. That being the position of law, the court was not justified in declining the prayer of the petitioners for amendment of the written statement in a suit where they are defendants. The order impugned in Civil Revision No.3104 of 2007, as such, cannot be sustained. The same needs to be set-aside and it is so ordered. The amendment of the written statement would stand allowed. The court would take on record the amended written statement and thereafter continue with the trial in accordance with law. As a result of above discussion, Civil Revision No.3103 of 2007 is dismissed, whereas Civil Revision No.3104 of 2007 is allowed. March 04, 2008 ( RANJIT SINGH ) ramesh JUDGE