Mahender Singh Tehlan and Another vs Nirmla Devi and Others

L.N. Mittal, J.—Defendants no. 1 and 2 have filed this revision petition under Article 227 of the Constitution of India impugning order dated 03.05.2013 (Annexure P-5), passed by the trial court, thereby dismissing application (Annexure P-3), moved by the petitioners for amendment of their written statement (Annexure P-2). It is unfortunate litigation among family members. Suit has been filed by respondents no. 1 and 2/plaintiffs. Petitioners and proforma respondent no. 9 (defendants no. 1 to 3) are sons of Chander Bhan, whereas plaintiffs and defendants no. 4 and 5 (respondents no. 1 to 4) are daughters of Chander Bhan, whereas respondents no. 5 to 8 (defendants no. 6 to 9) appear to be legal heirs of Jaswanti-another daughter of Chander Bhan.

The petitioners want to plead by amendment of written statement that parties being agriculturist Jats, are governed by customary law of District Rohtak in matters of alienation, Will etc., and therefore, plaintiffs, who are daughters of Chander Bhan, have no locus standi to file the suit, in view of provisions of the Punjab Custom (Power to Contest) Act, 1920.

Plaintiffs, by filing reply (Annexure P-4), opposed the amendment application and controverted the averments made therein.

Learned trial court, vide impugned order (Annexure P-5), has dismissed the petitioners'' application for amendment of written statement. Feeling aggrieved, instant revision petition has been filed to assail the said order.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners, relying on judgment of Hon''ble Supreme Court in the case of Sushil Kumar Jain Vs. Manoj Kumar and Another, , contended that amendment of written statement is allowed more liberally than amendment of plaint. Provision of Order 6 Rule 17 of the CPC (in short-CPC) relating to commencement of trial was also interpreted in the judgment.

I have carefully considered the matter.

In the instant case, amendment application was moved after issues had been framed and plaintiffs had availed of opportunity for leading their evidence, although had not led any evidence, as submitted by counsel for the petitioners. Consequently, the amendment application was moved after commencement of trial. Judgment in the case of Sushil Kumar Jain (supra) is not applicable to the facts of the instant case. On the other hand, according to proviso to Order 6 Rule 17 CPC, amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not have raised the matter before commencement of trial in spite of due diligence. In the instant case, it cannot be said that in spite of exercise of due diligence, the petitioners could not have raised the proposed plea (sought to be taken by amendment of written statement) before commencement of trial. Consequently, in view of mandatory provision of Order 6 Rule 17 CPC, amendment of written statement, which has been sought after commencement of trial, has been rightly declined. For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to warrant interference at the hands of this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition lacks any merit and is accordingly dismissed in limine.