Sri V.R. Jagadeesan vs Sri J. Balaraj

Ram Mohan Reddy, J.—Though this petition is listed for orders, with the consent of the learned Counsel for the parties, is finally heard and disposed of by this order.

The rejection of Petitioner''s I.A. No. 6 under Order 6 Rule 17 CPC to amend the written statement to add paragraph 16(a), by order dt. 30/11/2010 of the 43rd Addl. City Civil Court. Bangalore, in O.S.6253/06, is called in question in this petition.

In the suit instituted by the Respondent for removal of the encroachment by the Petitioner/Defendant and for permanent injunction, the Petitioner filed I.A. No. 6 under Order 6 Rule 17 CPC to amend the written statement to add paragraph 16(a) contending that the Defendant/Petitioner has not encroached upon the suit schedule premises to an extent of 3 feet on the northern portion of the Plaintiff''s site No. 43 and that the alleged rough, sketch produced by the Plaintiff is false and concocted and further that on the western side of the Petitioner''s premises, there is a drainage (gutter) which runs from north to south and is in a straight, line up to the Petitioner''s property and from the edge of the drainage, the Petitioner''s premises falls within the measurement as recorded in the sale deed. This, according to the Petitioner, is only an amplification of the contention in paragraph 16 of the written statement denying the claim of encroachment. That application was opposed by filing statement of objections interlaid contending that, in view of the proviso to Order 6 Rule 17 Code of Civil Procedure, disentitles the Petitioner to amend the written statement after the commencement of trial. The court below, having regard to the pleadings of the parties, fell in favour with the contentions advanced by the Respondent/Plaintiff and accordingly, by the order impugned, rejected the application.

Having heard the learned Counsel for the parties, perused the pleadings and examined the order impugned, indisputably Petitioner filed written statement denying the alleged encroachment more appropriately at paragraph 1.6. That denial not being specific impelled the Petitioner to file the application to amend the written statement to add paragraph. 16(a) specifically pointing out to the dimensions and the extent of the land in relation to the allegation of encroachment.

A perusal of the pleading sought to be added in the written statement as paragraph No. 16(a) does not indicate either advancing a fresh contention or resoling from any admitted facts, much less having the effect of changing the nature of the proceedings, in that view of the matter, the court below was not justified in rejecting the application only because it was presented after the commencement of the trial.

It. is true that the proviso to Order 6 Rule 17 CPC disentitles a party to file an amendment application after the commencement of the trial. But that is not an inflexible Rule as has been held by a catena of decisions of the Apex Court. If the party applying for amendment of the pleadings satisfies the court that there is a need to permit an amendment to the pleadings after the commencement of trial, such amendment is permitted by courts.

In the. instant case, as noticed supra, a necessity having arisen to amplify the pleading in the written statement, the trial Court fell in error in rejecting the Petitioner''s application.

In the result, the petition is allowed.I.A. No. 6 under Order 6 Rule 17 CPC filed by the Petitioner to amend the written statement to add paragraph 16(a), is allowed. Petitioner to file an amended written statement on the next date of hearing and Plaintiff is entitled to file rejoinder, if necessary, and also to further examine his witness with liberty to the. Petitioner to cross-examine the witness, on payment of cost, of Rs. 2,000/- to the Plaintiff.