C.R.No. 234 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 234 of 2011 (O&M) Date of decision: 14.1.2011 Anita Aggarwal and others ......Petitioners Versus Raj Kumar .......Respondent ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Puneet Jindal, Advocate, for the petitioners. **** SABINA, J. Respondent-Raj Kumar has filed petition under Section 13 of the East Punjab Urban Rent Restriction Act seeking ejectment of respondent Rajinder Kumar (now represented by his legal representatives-petitioners). Notice of the petition was issued to Rajinder Kumar. After filing of the written statement by Rajinder Kumar, issues were framed by the Rent Controller. Raj Kumar concluded his evidence and thereafter the case was fixed for respondent evidence. At that stage, an application was filed under Order 6, Rule 17 of the Code of Civil Procedure (in short 'CPC') seeking amendment of the written statement. Vide the impugned order, the said application has been dismissed by the Rent Controller. Hence, the present petition. C.R.No. 234 of 2011 (O&M) 2 Learned counsel for the petitioners has submitted that the facts, now sought to be pleaded by the petitioners, were not in the knowledge of the petitioners at the time of filing of the written statement. The said facts came to the knowledge of the petitioners after the cross-examination of the landlord was conducted. Hence, the amendment now sought to be incorporated in the written statement was liable to be allowed. In support of his arguments, learned counsel for the petitioners has placed reliance in the case of Sushil Kumar Jain Vs. Manoj Kumar, 2009 (3) R.C.R. (Civil) 899, wherein it was held as under :- “9. That apart, a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence. 10. At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering, substituting a new cause of action (See Baldev Singh & Ors. v. Manohar singh & Anr., 2006(3) RCR (Civil) 844 : C.R.No. 234 of 2011 (O&M) 3 2006(2) RCR (Rent) 265 : 2007(4) RAJ 435 : AIR 2006 SC 2832). 15. We are unable to agree with this submission of the learned counsel for the respondents. In this case, in our view, the trial has not yet commenced. In para 17 of Baldev Singh (Supra), this Court observed :- “It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion a found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings”. After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition deserves dismissal. Order 6, Rule 17 CPC reads as under :- “17. Amendment of pleadings.- The Court may at any stage of C.R.No. 234 of 2011 (O&M) 4 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, as per the above provision, once the trial has commenced no application for amendment shall be allowed unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. In the present case, issues were framed by the trial Court on 2.4.2006. Petitioner (before the trial Court) concluded his evidence on 19.11.2009 and thereafter the case was fixed for the evidence of the present petitioners. They availed 3-4 opportunities to lead their evidence. The plea taken by the petitioners is that they were under the impression that one of the shops was in possession of Rajiv Traders whereas during the cross-examination of landlord Raj Kumar it transpired that the said shop was also in his possession. The cross- examination of the landlord was conducted on 24.9.2008, however, the application under Order 6, Rule 17 CPC was filed after much delay. Even otherwise a perusal of the site plan (Annexure P-3) reveals that the C.R.No. 234 of 2011 (O&M) 5 petitioners are running the shop which are adjacent to the other shops of the landlord. In these circumstances, it is not believable that the petitioners had no knowledge that whether the shop shown in yellow colour in the site plan (Annexure P-3) had been rented out to Rajiv Traders or was being used by the landlord himself. In these circumstances, it cannot be said that despite due diligence the petitioners could not take up the plea, now sought to be taken by them, by way of amendment as they were not aware of the same. The trial Court has, thus, rightly dismissed the application filed by the petitioners. The judgment relied upon by the counsel for the petitioners fails to advance the case of the petitioners as based on different facts. Dismissed. (SABINA) JUDGE January 14, 2011 Anand