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2017 DIGILAW 1779 (ALL)

Harendra Singh v. Asha Srivastava

2017-08-01

MAHENDRA DAYAL

body2017
JUDGMENT : Mahendra Dayal, J. I have heard learned counsel for the parties and have perused the impugned order. 2. The revisionists have preferred this revision for setting aside the order dated 29.11.2016 passed in regular Suit No. 224 of 2014, whereby the application for amendment moved on behalf of the revisionist for amendment in the written statement, has been rejected. 3. In a suit filed by the opposite party for specific performance of contract, the revisionists filed their written statements on 17.7.2014. Thereafter the opposite party filed replication on 20.8.2014. During pendency of the suit, the revisionists applied for amendment in the written statement on the ground that the case was previously being conducted by Shri Sudhir Kumar Advocate, who prepared the written statement in English. It was said that he prepared the written statement without disclosing its contents to the revisionists. When the revisionists engaged another counsel and he, during the preparation of the case, asked some questions to the revisionists, it was found that some important facts have been left out to be mentioned in the written statement. It was also stated in the amendment application that in order to explain the pleadings, the amendment was necessary. 4. The application for amendment was opposed by the opposite party on the ground that the trial has already commenced and no sufficient ground has been shown as to why the pleadings sought to be incorporated by way of amendment, were not mentioned in the written statement when the same was filed. It was also submitted on behalf of the opposite party that after commencement of the trial, the amendment cannot be allowed unless it is shown by the party seeking amendment, that for some sufficient cause, amendment could not be incorporated. 5. The learned court rejected the amendment application, firstly, on the ground that the amendment application itself was in English, therefore the ground taken by the revisionists that they could not understand the written statement, is not tenable. Moreover, the written statement must have been prepared by the earlier counsel after taking necessary instructions from the revisionists and after ascertaining the truth of the matter. The amendment sought to be incorporated were not such, that it came into knowledge of the revisionists after filing of the written statement. Moreover, the written statement must have been prepared by the earlier counsel after taking necessary instructions from the revisionists and after ascertaining the truth of the matter. The amendment sought to be incorporated were not such, that it came into knowledge of the revisionists after filing of the written statement. It was also found by the learned trial court that the trial has already commenced and one witness has already been examined, therefore the amendment in the written statement, cannot be permitted to be made. 6. The learned counsel for the revisionists has submitted that the proposed amendment will not change the nature of defence and sufficient cause was shown as to why those facts could not be incorporated earlier. It has also been submitted that the amendment in pleadings cannot be denied only on the ground of delay. The courts may permit amendment in the pleadings, if it is found that the amendment sought is necessary for the purpose of deciding the controversy between the parties. 7. The learned counsel for the opposite party has, on the other hand, submitted that after the amendment in the Code of Civil Procedure, the amendment under pleadings, is not permitted after commencement of the trial, unless a good ground is shown as to how the facts sought to be incorporated by way of the amendment, were not mentioned earlier. In this case the revisionists have failed to show as to why the facts sought to be incorporated now, were not mentioned when written statement was filed. 8. Reliance has been placed upon a Delhi High Court judgment reported in AIR 2007 Delhi 48. In this case it has been held that after framing of issues, amendment in pleading cannot be allowed. It has also been submitted on behalf of the opposite party that although the written statement was prepared by the earlier counsel in English but the written statement must have been prepared after seeking necessary instructions from the revisionists and after ascertaining the truth mentioned therein. There is therefore no sufficient ground for permitting them to amend their written statement. It is also submitted that the amendment cannot be allowed only to elaborate the pleadings because the same can be done, by way of evidence. 9. There is therefore no sufficient ground for permitting them to amend their written statement. It is also submitted that the amendment cannot be allowed only to elaborate the pleadings because the same can be done, by way of evidence. 9. Upon consideration of the submissions of the learned counsel for the parties and perusal of the impugned order, I do not find any illegality in the order passed by the court below. The learned court has passed the order keeping in view the legal provision and as such no interference is required in the impugned order. 10. In the result, revision is devoid of merit and is accordingly dismissed.