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2019 DIGILAW 1950 (HP)

Lajwanti & Another v. Mandir Kalisthan, Nahan

2019-12-18

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioners have challenged order dated 15.07.2019, passed by the Court of learned Senior Civil Judge, Nahan, District Sirmaur, H.P. in Civil Miscellaneous Application No.857/6 of 2017 in Civil Suit No.34/1 of 2012, titled as Lajwanti and another Versus Mandir Kalishtan, Nahan, vide which an application filed under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the written statement, has been dismissed. 2. Petitioners herein are defendants before the learned trial Court. Respondent has filed a suit for possession against them qua the suit property subject matter of the suit before the learned trial Court. The suit stands instituted somewhere in the year 2012. 3. After the plaintiff closed its evidence, opportunities were granted to the defendants i.e. the petitioners herein to lead their evidence. In the course of doing so, an application stood filed by them under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the written statement. This application was filed in the month of September, 2017. A perusal of the application which was filed under Order 6, Rule 17 of the Code of Civil Procedure, demonstrates that what was intended to be incorporated in the written statement by the plaintiff were certain amendments with regard to the social standing of Swami Tirtha Nand alias Ram Kumar, i.e. Secretary of the Plaintiff''s Samiti in the society. 4. Vide impugned order, learned trial Court has rejected the application inter alia by holding that the proposed amendments were not necessary in view of the defence already taken by the applicants in the written statement, especially as the interest of the applicants could be protected by framing additional issues and by permitting them to lead evidence on the same. Besides this, learned trial Court also held that as the application praying for amendment in written statement stood filed at a belated stage and further as the same was not necessary for the adjudication of the dispute between the parties, the proposed amendment was not necessary to be allowed for the decision of the case. 5. Feeling aggrieved, the applicants/ defendants have filed this petition. 6. 5. Feeling aggrieved, the applicants/ defendants have filed this petition. 6. Having heard learned counsel for the parties and having perused the impugned order as well as other documents on record, in my considered view there is no infirmity with the order so passed by the learned trial Court. 7. It is settled law that in order to succeed under Order 6, Rule 17 of the Code of Civil Procedure, a party has to demonstrate due-diligence. In the present case, the suit stood instituted in the year 2012. The case is being listed since the year 2015 for recording statements of the defendants'' witnesses. It was at a belated stage somewhere in the year 2017, that the application stood filed by the present petitioners for amendment of the written statement. 8. A perusal of the application demonstrates that there is nothing mentioned in the same as to why the averments which were intended to be incorporated by way of amendment in the written statement could not be earlier so incorporated either at the time of filing of the written statement or within some reasonable time thereafter. Though, there is a bald assertion made in the application that the facts which were now being intended to be introduced by way of amendment were not in the knowledge of the defendants, however, there is no material on record to substantiate said fact. 9. Further, a perusal of the averments made in the application demonstrates that the proposed amendment was being sought on the basis of certain events which were relatable to the year 2011 and 2015. In fact, as far as year 2015 is concerned, it is not as if any specific event actually took place in the said year. All that is mentioned in the application is that in the year 2015, a voter list was prepared for the Legislative Assembly, Nahan, in which Tirtha Nand was reflected as Ram Kumar son of Pyare Lal. It is not the case of the applicants in the application that before this the voter lists were containing some different particulars of this particular person. This, in my considered view clearly demonstrates that the applicants failed to prove due-diligence as to why the proposed amendment could not be incorporated by them earlier in the written statement. 10. It is not the case of the applicants in the application that before this the voter lists were containing some different particulars of this particular person. This, in my considered view clearly demonstrates that the applicants failed to prove due-diligence as to why the proposed amendment could not be incorporated by them earlier in the written statement. 10. Besides this, a perusal of the impugned order demonstrates that the interest of the petitioners otherwise stands protected by the learned trial Court as it has already observed that additional issues shall be framed keeping in view the stand which has been taken by the petitioners in the written statement. 11. The contention of learned counsel for the petitioners that framing of additional issues will be of no use in the absence of the pleadings of the parties, has to be negated because in the garb of amending pleadings under Order 6, Rule 17 of the Code of Civil Procedure, a party cannot be permitted to fill up the lacunae. The provisions of Order 6, Rule 17 of the Code of Civil Procedure are sacrosanct in nature and it is only if the conditions contained in Order 6, Rule 17 of the Code of Civil Procedure are fulfilled, that a party can be permitted to amend the pleadings. This Court is not oblivious to the fact that a liberal approach is to be adopted while considering the application for amendments of the written statement, however, this liberal approach also has to be construed in a manner that it balances the rights of the other party also and does not acts to its prejudice. 12. Accordingly, as this Court does not finds any merit in the present petition, the same is dismissed. No order as to costs. Parties are directed to appear before the learned trial Court on 02.01.2020. Pending miscellaneous applications, if any, stand disposed of. Interim order, if any, stands vacated .