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2009 DIGILAW 1339 (PNJ)

K. B. Sharma v. Keerti Karan Dharni

2009-08-06

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision-petition, under Article 227 of the Constitution of India, is directed, against the order dated 21.08.08, rendered by the Court of Civil Judge (Junior Division), Chandigarh, vide which, the application, under Order 6, Rule 17 of the Code of Civil Procedure, for the amendment of written statement, filed by the defendant, was accepted. 2. During the pendency of suit, for specific performance of agreement of exchange dated 27.06.02, in respect of 1/4 share of defendant No.1, in house No. 1546, Sector 38-B, Chandigarh, filed by the plaintiff, he (defendant No. 1), filed an application, under Order 6, Rule 17 of the Code of Civil Procedure, for the amendment of written statement. By way of amendment, defendant No. 1, wanted to add the facts that his signatures were obtained on blank papers, by the plaintiff, which were, later on, converted into an agreement of exchange; that the plaintiff, had been under suspension, since 1998, in a corruption case, popularly known as Jerath case, and was also sentenced to imprisonment, in the same; that he was in financial problem; that certain blank cheques, duly signed by him, were handed over to his sister i.e. the wife of the plaintiff, for paying his monthly instalments of house No. 1546, Sector 38-B, Chandigarh, for which, he had given General Power of Attorney, to her; that the same were subsequently misused and the case with regard to the same, was already pending. It was stated that the amendment, was essential, for the just decision of the case. 3. The application, was contested, by the plaintiff/respondent, stating therein, that the pleas, which defendant No. 1, wanted to incorporate, by way of amendment, were not relevant, for the just decision of the case. It was further stated that three witnesses of the plaintiff, had already been examined-in-chief, but the same were not cross-examined, for the last three hearings, despite their presence. It was denied, that any new developments took place, during the pendency of the lis. It was further stated that all the alleged facts sought to be incorporated were already in the knowledge of defendant No. 1. It was further stated that, in view of the proviso engrafted to Order VI Rule 17 of the Code of Civil Procedure, once the trial commenced, the amendment of written statement could not be allowed. It was further stated that all the alleged facts sought to be incorporated were already in the knowledge of defendant No. 1. It was further stated that, in view of the proviso engrafted to Order VI Rule 17 of the Code of Civil Procedure, once the trial commenced, the amendment of written statement could not be allowed. It was further stated that the application for amendment, had been filed, just with a view to delay the proceedings, in the case. 4. After hearing the Counsel for the parties, the trial Court, accepted the application, vide order dated 21.08.08. 5. Feeling aggrieved, the instant revision-petition, has been filed by the revision-petitioner. 6. I have heard the Counsel for the revision-petitioner, and respondent No. 2, and have gone through the documents, on record, carefully. 7. The Counsel for the revision-petitioner, submitted that the pleas sought to be added by defendant No. 1, by way of amendment, were not at all relevant, for the just decision of the controversy, involved in the suit. He further submitted that these pleas were already in the knowledge of defendant No. 1, and did npt come into being, during the pendency of the suit. He further submitted that, even the amendment of written statement, could not be allowed, because the plaintiff, as the trial had already commenced, had already examined-in-chief, three witnesses, who had not yet been cross-examined by defendant No. 1/applicant, for the last three hearings, and he was delaying the case. 8. Respondent No. 2, did not oppose the submissions, made by the Counsel for the revision-petitioner. 9. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the revision-petitioner, in my considered opinion, the revision-petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. It is evident, from the record, that the suit, was filed, in the year 2003, for the specific performance of the agreement of exchange dated 27.06.02. It is evident, from the record, that already the affidavits of the three witnesses, in the shape of examination-in-chief, had been tendered by the plaintiff, when the application for the amendment of written statement, was filed by defendant No. 1. It is evident, from the record, that already the affidavits of the three witnesses, in the shape of examination-in-chief, had been tendered by the plaintiff, when the application for the amendment of written statement, was filed by defendant No. 1. No doubt, he did not cross-examine those witnesses, but had delayed the said cross-examination, for three hearings It means that the trial had commenced, in the case, when the application for the amendment of written statement, was filed, by defendant No. 1. According to the proviso engrafted to Order VI, Rule 17 of the Code of Civil Procedure, after the commencement of trial the amendment of pleadings, cannot be allowed, until and unless, the party, seeking amendment, establishes that despite due diligence, it could not raise the pleas sought to be incorporated, by way of amendment. Similar principle of law, was laid down, in Ajendraprasadji N. Pande and another v. Swami Kesltavprakeshdasji N. and oth- ers, 2007(1) RCR(Civil) 481 - 2007(1) RCR(Rent) 35 (SC). The pleas sought to be raised, by way of amendment, by defendant No. 1, were already, in his knowledge, at the time of filing the original written statement. It was not that these pleas, cropped up, after the filing of the written statement, by him. It is also not that he could not come to know of these pleas, despite due diligence. An argument, was raised, before the trial Court, that the proposed amendment, could not be allowed, in view of the proviso to Order VI, Rule 17 of the Code of Civil Procedure, as the trial had already commenced, but the same was rejected by it, on the ground, that the trial, had not yet commenced, as only affidavits by way of examination-in-chief of three witnesses, by the plaintiff, had been tendered. In my opinion, such an observation, made by the trial Court, in the order, is not supported by the provisions of law. The trial commenced, as soon as the issues were settled, and the case was set down for recording evidence, in view of the principle of law laid down in Ajendraprasadji N. Pande and anothers case (supra). Proviso to Order VI, Rule 17 of the Code of Civil Procedure, therefore, came into operation, and, as such, the amendment sought for, could not be allowed. The submission of the Counsel for the revision-petitioner, in this regard, being correct, is accepted. 10. Proviso to Order VI, Rule 17 of the Code of Civil Procedure, therefore, came into operation, and, as such, the amendment sought for, could not be allowed. The submission of the Counsel for the revision-petitioner, in this regard, being correct, is accepted. 10. Not only this, even some pleas, sought to be taken by defendant No. 1, by way of amendment, could also not be said to be relevant, for the just decision of the controversy, in the suit. If the plaintiff was involved in a corruption case, was placed under suspension, and, ultimately, sentenced to imprisonment, that did not, have any effect, in so far as the civil suit, was concerned. If a criminal case, with regard to the misuse of blank cheques, by defendant No. 1, had been filed by defendant No. 1, that could hardly have any effect, on the controversy, in dispute. The amendment was, thus, not essential, for the just decision of the case. The trial Court, was, thus, wrong, in allowing the amendment. 11. The order impugned suffers from illegality, and perversity, warranting interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India, and the same, is liable to be set aside. 12. For the reasons recorded above, the revision- petition, is accepted. The order impugned, is set aside. The application for the. amendment of written statement, filed by defendant No. 1, is dismissed. The parties, are directed, to appear, in the trial Court, on 07.09.09, at 10.00 AM, sharp, for further proceedings.