Sheela Devi and Others vs Bakshi Ram

Deepak Gupta, J.—By means of this petition, the Petitioners (hereinafter referred to as the Defendants) have challenged the order dated 7th January, 2011, passed by learned Civil Judge (Senior Division), Nadaun, in Civil Suit No. 232 of 2004, whereby he has rejected the application filed by the Defendants, seeking permission to amend the written statement.

Briefly stated the facts of the case are that the Respondent (hereinafter referred to as the Plaintiff) filed a suit, in respect of land comprised in Khasra No. 62, Khata No. 57 min, Khatauni No. 57 min, measuring 0-11-09 hectares, situated in Tikka Reori Uperli, Tappa Jalari, Tehsil Nadaun, District Hamirpur, Himachal Pradesh. In the plaint it was alleged that the land, which is abadi deh, was coming in the possession of the parties since time of their forefathers and that the Plaintiff and Defendants alone are the owners to the exclusion of the other estate right holders of the village. It was further alleged that the Plaintiff has half share in the land and the Defendants jointly own the other half. The Plaintiff, therefore, sought possession of half share by way of partition.

The Defendants in their written statement specifically admitted that the land is joint and that the Plaintiff is owner of half share. According to the Defendants, the land already stood partitioned and each party is in possession of the land allotted to it in the family partition.

The suit was filed in the year 2004. The Plaintiff concluded his evidence in the year 2007 and the Defendants concluded their evidence in the year 2010 and thereafter the case was fixed for rebuttal evidence of the Plaintiff. The Defendants, at this stage, moved an application that during the pendency of the suit they had come to know that their mother Dhano Devi had purchased the entire suit land vide sale deed dated 20th April, 1979 and, therefore, they sought permission to amend the written statement. Now, they wanted to withdraw the admission that the suit land was joint and instead wanted to plead that their mother had purchased the entire suit land and, therefore, they are the exclusive owners in possession of the suit land. This is the sum and substance of the amendment sought by the Defendants.

Reply to the application for amendment was filed. It is stated that since the trial has commenced, no amendment can be allowed unless it is shown that despite due diligence the Defendants could not plead the above facts. Further, it was alleged that the Defendants having specifically admitted the ownership of the Plaintiff could not now be permitted to turn around and withdraw the admission.

Learned trial Court rejected the application and, hence, the present petition.

I have heard Mr. Ramakant Sharma, learned Counsel for the Defendants and Mr. K.D. Sood, learned Counsel for the Plaintiff.

Order 6 Rule 17 of the CPC reads as follows:

Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms 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 the commencement of trial.

Proviso to Order 6 Rule 17 of the CPC was added vide CPC (Amendment) Act, 2002, dated 1st July, 2002. This proviso specifically provides that after the trial has commenced, the Court would not allow an application for amendment unless it comes to the conclusion that in spite of due diligence the party could not raise the matter in the original pleadings.

I have gone through the application filed under Order 6 Rule 17 of the CPC and the other material on record. The Defendants have stated that they have come to know during the pendency of the suit that their mother had purchased the suit land. There is no material on record to show the exercise of due diligence by the Defendants. Once the Legislature, in its wisdom, had debarred the Courts from allowing amendments, unless due diligence is shown, a party seeking amendment must plead the facts which show that it has acted with due diligence. There is nothing on record to show that the Defendants acted with due diligence. Therefore, at the fag end of the trial they cannot be permitted to amend the pleadings, without showing due diligence and cannot be permitted to withdraw the very important admission which they had made admitting the ownership of the Plaintiff. Therefore, I am not inclined to allow this petition. Petition is dismissed.