R.K. Kanchi vs PGI Medical Technologist Association and Others

Gurdev Singh, J.—This revision petition under Article 227 of the Constitution of India by the Petitioner-Defendant No. 1 is directed against the order dated 29.7.2010 passed by Additional Civil Judge(Senior Division), Chandigarh, vide which he dismissed the application filed by the Defendants under Order 6 Rule 17 CPC for the amendment of the written statement.

The suit was filed by Respondent No. 1-Plaintiff for permanent injunction restraining the Defendants from using the letter head of the Plaintiff-Technologists Association and restraining them from claiming as its office bearers and from doing any kind of activity in its name and for mandatory injunction directing them to hand over the funds and records of the Association. The suit of the Plaintiff was resisted by the Defendants on various grounds pleaded in the written statement. Application under Order 6 Rule 17 CPC was filed by them for amending para No. 23 of the written statement in order to clear the position by adding the following para:

It deserves to be mentioned that most of the record was already received/taken over by the present association except for few letter heads etc. which the applicants are ready to give. In fact those documents were not being handed over because the election vide which the office bearers have been elected is illegal and the said election has been challenged by the applicants by way of separate suit titled R.K. Khanchi and Ors. v. K.L. Chopra pending before this Hon''ble Court in event the election of the Plaintiff is held to be illegal in that situation the record cannot be ordered to be handed over. Moreover, the tenure of the every elected body was earlier one year and now it is two years and after the expiry of aforesaid tenure (more over it has already expired) the right to claim the letter heads etc. does not survive.

According to them, this amendment is necessary for proper adjudication of the case. The application was opposed by the Plaintiff on the ground that all the record is still in custody of the Defendants and they cannot withdraw the admission already made by them. This amendment will change the controversy in the suit and the application is hopelessly time barred. After hearing learned Counsel for both the sides, the application was dismissed.

I have heard learned Counsel for the Petitioner.

It has been submitted by counsel for the Petitioner that the application was merely dismissed on the grounds that the Defendants omitted to mention in their application that despite due diligence they could not take up this plea in the original written statement. The amended provisions of CPC are not applicable to the pleadings already submitted before that amendment and as such the application could not have been dismissed on that ground. He also submitted that the amendment sought for is necessary for making the position of the Defendants clear, who are not in possession of all the records of the Association and some of the record has already been handed over to the new office bearers.

This Court is in consonance with the first submission made by counsel for the Petitioner. The proviso to Rule 17 Order 6 CPC, which was added by means of amendment, is not attracted in this case as the written statement had been filed before the Amendment Act No. 24 of 2002, vide which different provisions of CPC were amended. Therefore, the application could not have been dismissed merely on the ground that the Defendants failed to prove that despite due diligence, they could not take this plea in the original written statement before the commencement of the trial.

The application was not dismissed merely on that ground. The trial court considered the other grounds also for dismissing the application. No doubt, the amendment can be allowed even at a belated stage, but delay can be taken into consideration by the court for disallowing the application for amendment, as that reflects mala fide on the part of the Petitioner. Admittedly, the suit was filed in the year 1998 whereas the present application was filed after a period of 12 years and that too after the Plaintiff made all his cards open by producing his evidence. After going through the proposed amendment, it can easily be said that this amendment is not at all necessary for deciding the real controversy between the parties. The application was correctly dismissed by the trial court and there is no ground for interfering in that order while exercising the revisional jurisdiction.

Revision petition is dismissed accordingly.