ORDER : Heard. 1. The petitioner has challenged the order dated 18.08.2023 passed by the learned Xth Civil Judge Class-II Durg, Chhattisgarh in Civil Suit No. 44-A/2013 whereby an application moved by defendant No.1 under Order 6 Rule 17 of the CPC has been rejected. 2. The facts of the present case are that respondent No.1/plaintiff filed a Civil Suit on 01.03.2013 for the declaration of title and permanent injunction against the petitioner wherein the plaintiff prayed that a declaration be issued in his favour to the effect that the plaintiff may be declared the owner of the suit property situated in Village Risali, Patwari Circle No. 65/19, Survey No.321 ad-measuring 1624 sq. ft. and the construction situated over it known as ‘Surya Restaurant’ and also sought relief that he may be permitted to mutate his name in the revenue records. 3. The original defendant No.1 namely, G. Rajan met with an accident and became mentally unfit therefore, an application under Order 32 of the CPC was moved by his wife to pursue the civil suit and contest the case as the next friend which was allowed vide order dated 11.04.2017. She filed the written statement on 16.08.2017. In the written statement, it was specifically pleaded that an oral agreement was entered between the plaintiff and defendant No.1 for the sale of Surya Restaurant for an amount of Rs. 13.50 lakhs out of which an advance amount of Rs. 1 lakh was received through two cheques and an amount of Rs. 2 lakhs was again received through four cheques on 01.01.1999, total Rs. 3 lakhs was received out of the agreed amount. 4. It is stated in the written statement that a Civil Suit for Specific Performance of Contract was filed bearing Civil Suit No. 65-A/2007 where the learned XIIth Additional District Judge in its judgment dated 25.06.2010 has not found the plaintiff to be entitled to the decree of specific performance. The petitioner further stated in the written statement that the plaintiff ought to have valued the suit at Rs. 11,58,098/- and the Court Fees ought to have been paid accordingly. 5. The petitioner further stated in the written statement that the plaintiff ought to have valued the suit at Rs. 11,58,098/- and the Court Fees ought to have been paid accordingly. 5. Later on, the wife of defendant No. 1 got a declaration executed by the plaintiff wherein in para 3, the plaintiff admitted to repay the outstanding loan of Nagrik Sahakari Bank Sector 6, Bhilai and also undertook to pay the amount to defendant No. 1 - N. Rajan for Rajan Poultry Farm, Uttai. Thereafter, defendant No. 1 through the next friend moved an application under Section 65 of the Evidence Act to prove the contents of the declaration by leading secondary evidence. 6. The plaintiff/respondent No.1 filed the reply to the said application and vide order dated 27.03.2023, the learned Trial Court allowed the application filed under Section 65 of the Evidence Act and the aforesaid declaration was admitted as secondary evidence in the case. Thereafter, the petitioner/defendant No.1 moved an application under Order 6 Rule 17 of CPC on 27.06.2023 for amendment in the written statement to the effect that a declaration was executed in favour of the defendant No.1 by the plaintiff wherein it was admitted that in lieu of agreement to sell the suit property, the plaintiff agreed pay the loan taken from Nagrik Sahkari Bank Branch Sector 6, Bhilai and he also undertook to pay the amount to defendant No.1 for Rajan Poultry Farm, Uttai. In the application, the petitioner has stated that the document was not in the possession of the next friend of defendant No.1, the said document goes to the root of the case and the proposed amendment would not change the nature of the suit. 7. The plaintiff filed the reply and stated that earlier an application was moved by defendant No.1 for notice to admit the document and the same was rejected. It is further stated that in the written statement there is no whisper regarding the document of re-declaration. It is also stated that if the document was available with defendant No.1, why it was not filed along with the written statement. It is also mentioned in the application that the proposed amendment is time-barred. 8. Learned trial Court vide order dated 18.08.2023 held that application moved by defendant no.1 under Section 65 of the Evidence Act has been allowed. It is also mentioned in the application that the proposed amendment is time-barred. 8. Learned trial Court vide order dated 18.08.2023 held that application moved by defendant no.1 under Section 65 of the Evidence Act has been allowed. It is further observed that the petitioner had not discussed the contents of the declaration document in the application moved under Section 65 of the Evidence Act, the same is not readable and there is no pleading in this regard in the written statement, the application has been moved after an inordinate delay and thus, the application was rejected. 9. Learned counsel for the petitioner would submit that in para-6 of the written statement, the petitioner has categorically stated that defendant No.1 was running ‘Surya Restaurant’ and a loan of Rs. 5 lakhs was obtained from Nagrik Sahkarita Bank Branch Sector 6, Bhilai. Further, in the same para, it is stated that there was an agreement between the plaintiff and defendant No.1 to sell the restaurant for a consideration of Rs.13.50 lakhs and Rs. 3 lakhs was obtained through different cheques. According to the agreement, the plaintiff had to pay the loan amount of the Bank and the mandatory amount to defendant No.1. In para-4 again there is a pleading with regard to the agreement and payment of Rs. 3 lakhs by the plaintiff to the defendant No.1. He would further submit that during the pendency of the civil suit defendant No.1 met with an accident in the year 2014-15, therefore, an application under Order 32 of the CPC was moved and the same was allowed on 11.04.2017. He would also submit that an agreement was entered into between the plaintiff and defendant No.1 and on account of his ill mental condition the statement was not filed by him rather it was filed by his next friend i.e. wife, therefore, this fact was not within her knowledge. He would emphasize that the learned trial Court vide order dated 27.03.2023 allowed the application moved by the petitioner under Section 65 of the Evidence Act and the petitioner was permitted to prove the declaration document as secondary evidence. 10. He would further contend that there was no delay, there is sufficient pleading in the written statement regarding the declaration document and the finding recorded by the learned trial Court in this regard is perverse. 10. He would further contend that there was no delay, there is sufficient pleading in the written statement regarding the declaration document and the finding recorded by the learned trial Court in this regard is perverse. He would pray to allow the application moved by the petitioner under Order 6 Rule 17 of the CPC. 11. In support of his argument, he has placed reliance on the judgments passed by the Hon’ble Supreme Court in the matter of State of Bihar and others v. Modern Tent House and another [ AIR 2017 SC 4966 ]; Raj Kumar Bhatia v. Subhash Chander Bhatia [ AIR 2018 SC 100 ] and Life Insurance Corporation of India v. Sanjeev Builders Private Limited [ AIR 2022 SC 4256 ]. 12. On the other hand, learned counsel for respondents would oppose the contention made by counsel for the petitioner. 13. Mr. Uttam Pandey, learned counsel appearing for respondent No.1 would submit that a civil suit was filed by the petitioner/defendant No.1 bearing Civil Suit No. 65A of 2007 wherein certain issues were framed. He would further submit that the aforesaid civil suit was dismissed and in para-11 of the judgment, it was held that the bank loan taken by the petitioner by mortgaging the shop was paid by respondent No.1/plaintiff and the property became free from all encumbrances in the year 2002. 14. He would further submit that it is also observed by the learned trial Court that original documents were obtained by the petitioner but the registered sale deed was not executed after receipt of Rs.7.50 lakhs. He would also submit that there is no legal flaw in the order passed by the learned trial Court dated 18.08.2023. He would argue that the petitioner ought to have pleaded the facts of the declaration document in the written statement and it is not stated as to how and when the document came into the possession of the next friend of the petitioner. In para 8.3 of the petition, it has been mentioned that the wife of defendant No.1 got a declaration executed by the plaintiff wherein in para 3 the plaintiff admits to repay the outstanding. In para 8.3 of the petition, it has been mentioned that the wife of defendant No.1 got a declaration executed by the plaintiff wherein in para 3 the plaintiff admits to repay the outstanding. It reads thus:-:- “That, later on the wife of defendant no.1 got a declaration executed by the plaintiff wherein in para 3 the plaintiff admits to repay the outstanding loan of Nagrik Sahakari Bank Sector 6 Bhilai and also undertakes to pay the amount to be paid to defendant no. 1 N.Rajan for Rajan Poultory forms Uttai. Copy of the declaration is being filed herewith as 'Annexure P-3'” 15. In para-9.3, it is stated that the next friend who is the wife of the petitioner, being a lady, was not aware of the document of declaration when the written statement was filed in the year 2017. Thus, the statements of the petitioner are contradictory which goes to the root of the case and destroys the entire foundation of the amendment application. 16. He would further contend that the petitioner has not established that after due diligence, she could not move an application for amendment. He would also contend that the petitioner has not approached the Court with clean hands and there is an inordinate delay of 10 years in moving the application for amendment and therefore the learned trial Court has rightly rejected the application. In support of his argument, he placed reliance on the judgments passed by the Hon’ble Supreme Court in the matter of MCD v. State of Delhi and another reported in (2005) 4 SCC 605 and Oswal Fats and Oils Limited v. Additional Commissioner (Administration, Bareilly Division, Bareilly and others reported in (2010) 4 SCC 728. 17. I have heard learned counsel appearing for the parties, considered their rival submissions put forth and carefully perused the documents placed on record. 18. From the perusal of documents, it appears that the original defendant No.1/petitioner met with an accident during the pendency of the Civil Suit in the year 2015 and became mentally unfit, and looking at the physical and mental condition of defendant No.1, an application under Order 32 of the CPC was filed by the wife of defendant No.1 and the same was allowed vide order 11.04.2017. The petitioner moved an application under Section 65 of the Evidence Act for taking the copy of the application as secondary evidence on record and the same was allowed vide order dated 27.03.2023. 19. In the written statement, the petitioner has pleaded certain facts with regard to the existence of an agreement between the plaintiff and defendant No.1. In para-3, defendant No.1 has categorically stated that an agreement was entered into between the plaintiff and defendant No.1 for sale of ‘Surya Restaurant’ and an amount of Rs.3 lakhs was given to the petitioner through different cheques. The consideration amount was Rs.13.50 lakhs and the plaintiff promised to repay the amount of the loan taken from Nagrik Sahkarita Bank Branch Sector 6, Bhilai. 20. It is also apparent from the written statement that though the declaration document was not produced, the contents of the documents have been pleaded by defendant No.1. The learned trial Court taking into consideration the relevancy of the declaration document, vide order dated 27.03.2023 allowed the application moved by the petitioner under Section 65 of the Evidence Act and that order has not been challenged by the plaintiff/respondent No.1 therefore it attained finality. 21. With regard to delay as argued by learned counsel for respondent No. 1, it would be worthy to take note that on 27.03.2023 an application under Section 65 of the Evidence Act was moved before the learned trial Court and immediately thereafter on 27.06.2023 an application under Order 6 Rule 17 of the CPC was moved, therefore, in the opinion of this Court, there was no delay in moving the application for amendment. 22. In para 8.3, the petitioner stated that later on, the wife of defendant No.1 got a declaration executed by the plaintiff. The learned counsel for respondent No.1 submitted that the declaration document was executed by the wife of defendant No.1 however the contention of Mr. Pandey is misconceived. The petitioner has pleaded that the wife of defendant No.1 obtained the declaration and it is not pleaded that the document was executed by the wife of defendant No.1. In para 9.3 of the petition, the petitioner has stated that the wife of the petitioner being a lady was not aware of the document of the declaration when the written statement was filed in the year 2017. In para 9.3 of the petition, the petitioner has stated that the wife of the petitioner being a lady was not aware of the document of the declaration when the written statement was filed in the year 2017. Undisputedly, the document was executed between the plaintiff and defendant No.1 in the year 1998, the civil suit was filed in the year 2013 and thereafter, the original defendant met with an accident and became mentally unfit and therefore, it can be inferred that the document was not within the knowledge of wife of defendant No.1. 23. The Hon’ble Supreme Court in the matter of Modern Tent House (supra) has held in para-8 as under:- "8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises." 24. In the matter of Rajkumar Bhatiya (supra), the Hon’ble Supreme Court has held in para-11 as under:- “11. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company, (2003) 3 SCC 524 this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.” 25. The Hon’ble Supreme Court in Sanjeev Builders Pvt. Ltd (supra) held as under:- "70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii)All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii)All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.” 26. The Hon’ble Supreme Court in the matter of MCD (supra) observed thus:- “21.This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. In the instant case, non-production of the order and even non-mentioning of the conviction and sentence in the criminal Case No. 202 of 1997 tantamounts to playing fraud on the Court. A litigant who approaches the Court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. The second respondent, in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this Court. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this Court. We, however, part with this case with heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs. 10,000 by way of cost to the appellant herein.” 27. In the matter of Oswal Fats and Oils Ltd (supra), the Hon’ble Supreme Court in para 48 observed thus :- “48. In the result, the appeal is dismissed. Since the appellant has not approached the quasi-judicial and judicial forums i.e. the Additional Commissioner, the High Court and this Court with clean hands and succeeded in securing interim orders, it is ordained to pay costs, which is quantified at Rs 2 lakhs. With a view to ensure that functionaries of the State Government may not connive with the appellant and compound the wrong already done, we direct the Government of Uttar Pradesh not to renew the lease of the appellant at the end of 30 years' period and deal with excess land in accordance with the provisions of the Act.” 28. The judgments relied on by the learned counsel for respondent No.1 deal with the production of documents before the Court or supply to the opposite party and the Hon’ble Supreme Court emphasized that a litigant who approaches the Court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain an advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. 29. In the present case, from a perusal of the written statement, the applications under Section 65 of the Evidence Act and Order 6 Rule 17 of the CPC moved by defendant No.1, it appears that the petitioner has not played any fraud as she enumerated all the facts in her written statement as well as in application under Order 6 Rule 17 of the CPC, therefore, the contention of the learned counsel for the respondent that the petitioner has played fraud with the Court is not tenable. 30. 30. Coming to the facts of the present case in light of the judgments of the Hon’ble Supreme Court as discussed above, it is quite vivid that the petitioner has moved an application for amendment to elaborate the pleadings already made in the written statement. The application has been moved after the learned trial Court allowed the application under Section 65 of the Evidence Act and the amendment does not change the nature of the suit and the same is necessary for the just adjudication of the case, therefore, in the considered opinion of this Court, the learned trial Court committed an error of law in rejecting the application moved by the petitioner under Order 6 Rule 17 of the CPC. Consequently, the order passed by the learned Court below is hereby set aside and the application moved by the petitioner under Order 6 Rule 17 of the CPC is hereby allowed.