Civil Revision No.4111 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.4111 of 2011(O&M) Date of Decision: August 17, 2011 Raj Kumar Bakshi .....Petitioner v. Smt.Kanta Aggarwal .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Parveen Kumar, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.16228-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.4111 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 5.3.2011 passed by learned Additional District Judge, (Fast Track Court), Hoshiarpur, vide which application filed under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as the `Code') by petitioner-defendant for amendment of written statement was rejected. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned first appellate Court. Facts relevant for the decision of present revision petition are that respondent-plaintiff filed a suit for recovery of `5,31,000/-, i.e., `4,50,000/- as mortgage amount and `80,000/- as interest/profit on the said Civil Revision No.4111 of 2011(O&M) -2- mortgage amount for the period from 15.2.1996 to 14.2.1997 alongwith future interest/profit @ `81,000/- per year from 15.2.1997 till its realization on the allegation that present petitioner had mortgaged his house vide mortgage deed dated 15.2.1996 with the respondent and, however, he has not paid interest/ profit, as agreed. Present petitioner-defendant contested the suit admitting execution of the mortgage deed, however, denying receipt of mortgage amount. Plea was taken that mortgage deed was executed only as a security to be invested by respondent and Ajay Kumar, who is son of brother of respondent's husband, who wanted to start a business at Hoshiarpur, which was to be looked after and run by the petitioner. Hence, plea was taken that in order to secure the investment, respondent and Ajay Kumar got the mortgage deed executed for the purpose of taking security of money, which was to be invested by them. Further plea was taken that as business was never started nor any amount was invested, hence, the mortgage deeds dated 15.2.1996 and 16.2.1996 are of no value as no amount was received by the petitioner. Suit filed by respondent-plaintiff was decreed by learned trial Court. Aggrieved against the said judgment and decree dated 7.11.2000, the present petitioner-defendant filed appeal against the same. Suit was filed on 23.4.1997. Appeal was earlier filed before this Court in January 2001 and, however, no application for amendment of written statement was filed before this Court. The appeal was sent by this Court to Additional District Judge, (ADHOC) Fast Track Court, Hoshiarpur, for deciding the same on merit on 10.5.2007. The appeal remained pending before learned first appellate Court. Present application was filed on 12.1.2011. Initially written statement was filed by the petitioner-defendant Civil Revision No.4111 of 2011(O&M) -3- on 6.11.1997 and the plea for amendment was filed after eight years of filing of original written statement and after suit was decreed by learned trial Court. By way of amendment, petitioner-defendant wants to take the plea that mortgage deed was got executed from him by applying undue influence as he was employee of family of plaintiff and the said plea was not taken earlier, inadvertently. It is pertinent to reproduce the amended provision of Order VI Rule 17 of the Code, which reads as under:- “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 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.” Law has been well settled by Hon'ble Apex Court in Vidyabai and others v. Padmalatha and another, 2009(1) RCR (Civil) 763 that no application for amendment is to be allowed after commencement of trial,unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of trial. Hence, petitioner-defendant was required to explain that in spite of due diligence he could not raise the matter, which he now intends to raise by way of amendment before commencement of trial. Hence, Civil Revision No.4111 of 2011(O&M) -4- learned first appellate Court has rightly observed that application filed at appellate stage is not maintainable. Moreover amendment sought is not a sort of clarification. Rather it is contrary to the stand already taken in the original written statement. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 17.8.2011 (Ram Chand Gupta) meenu Judge