M/s Amrapali Boutique Pvt. Ltd. and Another vs Saraswati Real Estate and Investment Pvt. Ltd. and Others

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated November 3, 1987, whereby the application seeking amendment of the written statement was dismissed. The plaintiff (respondent) Saraswati Real Estate and Investment (P) Ltd. filed this suit for specific performance of the agreement for sale etc. on May 17,1987. When the case was fixed for plaintiff''s evidence, the defendants moved the application for seeking amendment of the written statement. According to the said" application, the defendants wanted to elaborate certain pleadings already taken by them in the written statement originally. However, the said application was contested on behalf of the plaintiff. The trial Court found that the defendants by way of amendment want to set up a wholly new case and want to withdraw the admissions in a very clever manner. At the same time the trial Court also observed that "now in the present suit it is not even disclosed as to under what circumstances the written statement in question was filed. When the facts are already existing as per contention of learned counsel for the plaintiff, there is no necessity of the amendment. It is well settled that in the pleadings, evidence is not to be mentioned, only material facts are to be mentioned. Thus, under the cover of some elaboration or illucidation, the defendants cannot be permitted to make out a wholly new case".

Learned counsel for the petitioners submitted that the whole approach of the trial Court was illegal and wrong. There was no question of withdrawing any admission made by the defendants in the written statement filed earlier. The pleas are already there in the written statement, but certain facts were not mentioned, which they now want to plead by way of amendment. This is being down with the apprehension that the defendants may not be disallowed that the amendment in the written statement was necessary to determine the real controversy between the parties and should have been allowed on payment of costs, if any, if the application was belated one.

On the other hand, learned counsel for the plaintiff-respondent submitted that the trial Court has rightly dismissed the application, as defendants want to withdraw certain admissions made by them earlier in the written statement. Moreover, argued the learned counsel, that in case the pleas are already there, then the question of amendment as such did not arise. Evidence was not to be mentioned in the written statement and, therefore, the defendants will be liberty to lead evidence on the pleas already taken by them in the written statement.

After hearing the learned counsel for the parties, I am of the considered view that trial Court has rightly observed that when the facts are already existing there is not necessity of the amendment. The defendants will be entitled to lead evidence on the pleas already taken by them because the evidence according to the trial Court itself was not be mentioned in the pleadings. That being so, the amendment sought for by the defendants was not at all necessary defendants could lead the evidence on the pleas already taken by them. With these observations, the petition is disposed of accordingly.