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2019 DIGILAW 364 (HP)

KHAJAN SINGH TOMAR v. RAMESH KUMAR

2019-04-03

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of Constitution of India, the petitioner assails order dated 20.11.2018 passed by the Court of learned Civil Judge (Senior Division) Nahan, in CMA No. 585/6 of 2018 of Civil Suit No. 101/1 of 2013, vide which an application filed under Order 6 Rule 17 of CPC by petitioner-defendant praying for permission to amend the written statement has been dismissed. 2. Brief facts necessary for adjudication of present petition are that respondents No. 1 to 4 have filed a suit against petitioner and proforma respondents praying for following relief:- "It is, therefore, respectfully prayed that a decree for declaration for setting aside and cancelling the sale deed No. 55 dated 23.02.1987and Mutation No. 226 dated 14.08.1987 and further trust deed No. 38 dated 20.04.1987 and Mutation No. 229 dated 19.01.1988 be passed in favour of the plaintiffs and against the defendants. The defendants be further restrained from causing any kind of interference in the suit land which is in possession of plaintiffs being owner and they be also restrained from alienating the suit property in any manner. And or any other relief which this Ld. Court deems fit be also passed in favour of the plaintiffs and against the defendants. An affidavit is attached". (Relief clause has been extracted from the copy of plaint handed over to the Court by learned counsel for the petitioner.) 3. This suit was instituted in June, 2013. Written statement to the suit instituted in June, 2013 was filed on behalf of petitioner/defendant No. 1 in March, 2018. Meaning thereby that written statement to the suit apparently was filed after more than four and half years. 4. Be that as it may, this Court is not going into the issue as to why written statement was filed at such a belated stage. 5. After the filing of the written statement in October, 2018, an application was filed under Order 6 Rule 17 by petitioner/defendant No. 1 praying for permission to amend written statement on the ground that proposed amendments were necessary for adjudication of the suit and the reason as to why proposed amendments earlier be not incorporated in the written statement was unintentional mistake. This application was opposed by non-applicant/plaintiffs on the ground that proposed amendments if allowed would change the entire nature of the case and defendant intended to withdraw the admissions which were made in the written statement and therefore, if the application was allowed it would cause serious prejudice to the plaintiffs. 6. Learned Court below vide order under challenge has dismissed the application on the ground that proposed amendment if permitted would not only change the entire stand of defendant No. 1, but would also lead to fresh trial. It also weighed with the learned trial Court that the application to amend written statement had been filed after framing of the issues and the evidence of plaintiff was closed. Learned Court also held that no due diligence was exercised by the defendant so as to permit the application filed for amendment of the written statement and on these bases, learned trial Court dismissed the application. 7. I have heard learned Senior counsel for the petitioner and have also perused the impugned order, as well as record of the case. 8. Order 6 Rule 17of the CPC provides that Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such term 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 commencement of trial. 9. As I have already taken note of above, the suit was filed in the year 2013. The written statement filed by defendant No. 1 to the said suit is dated 03.1.2018, but as is evident from the order passed by learned trial Court, it was filed in the Court on 23.03.2018. Meaning thereby that it took almost four and half years for the defendant to file written statement to the suit. It is only after the Issues stood framed and evidence of the plaintiff stood recorded that an application was filed under Order 6 Rule 17 of the CPC for amendment of the written statement. 10. Meaning thereby that it took almost four and half years for the defendant to file written statement to the suit. It is only after the Issues stood framed and evidence of the plaintiff stood recorded that an application was filed under Order 6 Rule 17 of the CPC for amendment of the written statement. 10. A perusal of the contents of application demonstrates that there is nothing mentioned therein as to why despite due diligence what is intended to be incorporated by way of amendment could not earlier be incorporated in the written statement. 11. This is more so important in the factual matrix of this case, wherein it took almost four years for the petitioner/defendant No.1 to file written statement to the Civil Suit itself. 12. A perusal of the application demonstrates the only reason mentioned in the application as to why proposed amendments could not be incorporated earlier is that the "facts were part of the document which was inadvertently left out despite best efforts." 13. In my considered view, such kind of pleadings in the application cannot be termed to be due diligence and an act of omission on the part of party is not an act of due diligence. 14. Even otherwise, having perused the contents of written statement and having perused the proposed amendment intended to be incorporated in the written statement, this Court concurs with the findings returned by learned Court below that in case the proposed amendment is allowed not only the admissions made by the defendant in the written statement would be permitted to be withdrawn, but the same would also result in fresh trial. The contention of learned Senior Counsel appearing for the petitioner that proposed amendment is nothing but a clarification does not holds any merit because the proposed amendment intends to introduce new facts which were not earlier incorporated in the written statement and therefore, it cannot be said that the proposed amendments were just clarificatory in nature. Therefore, as this Court does not finds any merit in the petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.