Sushma Devi vs Ashok Kumar

V.K. Ahuja, J.—This is a petition filed by the petitioner (hereinafter referred to as the defendant) under Article 227 of the Constitution of India against the order dated 11.11.2011 passed by the learned Civil Judge, Senior Division, Court No. 1, Amb, District Una vide which the learned trial Court has dismissed the application filed by the defendant under Order 6 Rule 17 C.P.C. for amendment of the written statement. Briefly stated, the facts leading to the filing of the present petition are that the suit for specific performance of contract was filed by the respondent (hereinafter referred to as the plaintiff), on the basis of agreement dated 3.11.1998 as against the defendant. The suit was being contested by the defendant, who had taken the plea specifically that the alleged agreement is vague, incomplete and the defendant had never signed any such agreement and also challenged the signatures on the agreement. It was also pleaded that the signatures of the defendant on alleged agreement must be result of fraud and deception played upon the defendant by the plaintiff in connivance with scribe and marginal witnesses.

In the case in question, this written statement was filed by the defendant in the year 2002. Issues were framed on 6.10.2003. The plaintiff closed his evidence in 2004. The evidence of the defendant was closed by the order passed by the Court which order was challenged before this Court in petition and this Court vide its order dated 15th October, 2009 gave one more opportunity to the defendant to place on record the documents and prove the same by examining the relevant witnesses. It was also observed that the Court shall not afford more than two opportunities for proving the documents in accordance with law. Thereafter, the case was being tried by the learned trial Court and meanwhile the application in question was filed for amendment of the written statement which was declined and being aggrieved the petitioner has filed the present petition.

It is clear from a perusal of the record that the defendant had filed the written statement in the year 2002 and was quite well aware of the facts and he had specifically taken the plea that the signatures are not there on the agreement and are result of fraud and deception played upon him. Now the defendant has come with a plea that she wants to amend written statement and take the plea that the plaintiff is one of the partners of the firm and he had obtained one post dated cheque of Rs. 70,000/- from the son of the defendant and thereafter one of the partner of the said firm filed a case u/s 138 of the Negotiable Instrument Act against the son of the defendant namely Sunil Kumar and he received a sum of Rs. 70,000/- and withdrew the complaint. These facts were well within the knowledge of the defendant when he contested the case u/s 138 of Negotiable Instrument Act and there is nothing to show that these facts were not within his knowledge and therefore, he filed the application at the belated stage.

During the course of arguments, Learned Counsel for the petitioner has submitted that the proviso under Order 6 Rule 17 C.P.C. added by the Amended Act, 2002 shall not apply to the facts of the case.

The said proviso added by the Amended Act, 2002 reads as under:

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.

It is clear that these amendments are not retrospective in nature and they do not apply to pending proceedings in the case and even if this proviso is ignored, even then the Court has to opine that all such amendments are necessary for the purpose of determining the real question in controversy between the parties. The defendant has failed to prove that this amendment shall be necessary for the purpose of determining the real question of controversy between the parties which is based upon the suit for specific performance filed by the plaintiff and it can not be said that these facts were not in the knowledge of the defendant when she filed the written statement 10 years ago. In view of the above discussion, it follows that this another attempt to delay the case which is already pending over 10 years and no case is made out for amendment of the written statement filed by the defendant. The writ petition filed by the defendant is dismissed along with cost of Rs. 3000/-. Parties are directed to appear before the learned trial Court on 8th October, 2012 and the learned trial Court shall try to dispose of the case as far as possible by 31st December, 2012. Copy of the order along with record be sent to the learned trial Court. Cost shall be paid before the learned trial Court.

Any observation made by this Court shall have no effect on the merits of the main case. The learned trial Court shall dispose of the case independently ignoring the observations.

The petition stands disposed of accordingly.