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2014 DIGILAW 1586 (RAJ)

Aalok Khanna v. Rajdarshan Hotel Pvt. Ltd.

2014-09-26

ARUN BHANSALI

body2014
JUDGMENT : Arun Bhansali, J. The appellant has filed an application under Order 6, Rule 17 read with Sec. 151 CPC seeking amendment in the written Statement. 2. The appellant has given out the reasons {facts (a) to (h)} in the application necessitating filing of the present application and has prayed that para-17(a) to 17(t) as indicated in the application be ordered to be incorporated in the written statement. Further, the applicant has also produced Annexure-A to Annexure-N along with the application in support of the proposed averments sought to be made in the written statement, which also are prayed to be taken on record along with the amendment. 3. A reply to the application has been filed by the respondent challenging the maintainability of the application on the ground of state as well as in view of the proviso of Order 6, Rule 17 CPC. Further objections have been raised regarding the nature and the veracity of the documents sought to be produced. 4. It is submitted by learned counsel for the appellant that the proposed amendment does not change the nature of the defence, which has already been taken by the appellant by way of filing of the written statement before the trial court and, therefore, the proposed amendment deserves to be allowed as the same is not likely to cause prejudice to the respondent-plaintiff, who is well aware of the case of the appellant-defendant. 5. Learned counsel for the respondent vehemently opposed the prayer made and submitted that in view of the proviso to Order 6, Rule 17 CPC, the application is not maintainable and the same may be rejected on this count alone. Further, the fact that the appellant was in know of all the defence sought to be raised and having failed to raise the same at the appropriate stage cannot now be permitted to reagitate the whole issue all over again. 6. I have considered the rival submissions. 7. Provisions of Rule 17 Order 6 reads as under:-- "17. Further, the fact that the appellant was in know of all the defence sought to be raised and having failed to raise the same at the appropriate stage cannot now be permitted to reagitate the whole issue all over again. 6. I have considered the rival submissions. 7. Provisions of Rule 17 Order 6 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." 8. The proviso of the above Rule clearly cast an obligation on the applicant seeking amendment of the pleadings after the trial has commenced to make out a case that in spite of due diligence, the party could not raise the matter before the commencement of trial and not only this, the court before allowing such an amendment is required to record its satisfaction on the existence of said condition. 9. A bare look at the reasons (facts) indicated by the appellant reveals that not only that the appellant was well aware of the facts indicated in the amendment since beginning i.e. well before the present application has been filed but he has even indicated that he was aware of its importance; requirement of filing the documents; raising the plea and the amendment during the pendency of the suit itself, however, the same was apparently not done. 10. The suit remained pending from the year 2002 to 2007, where after the decree was passed against the appellant, the first appeal before this Court was filed in the year 2007 and the present application came to be filed in the year 2009. 11. 10. The suit remained pending from the year 2002 to 2007, where after the decree was passed against the appellant, the first appeal before this Court was filed in the year 2007 and the present application came to be filed in the year 2009. 11. From the reasons indicated as well as the conduct, it is apparent that it cannot be said that the appellant in spite of due diligence could not have raised the matter before the commencement of trial in the lower Court and, therefore, filing of this application in the present appeal at this stage is clearly prohibited under proviso to Rule 17 Order 6 CPC. 12. The fact as to whether the amendment sought to be raised is in consonance with the plea already raised in the written statement is not even required to be examined in view of the prohibition as noticed hereinbefore. Consequently, there is no substance in the application and the same is, therefore, dismissed.