SUBHASH CHAND SETHI Vs. J.K. JAIN

JUDGEMENT

(1.) Feeling aggrieved by the order dated 20th May, 2015 whereby the prayer of the petitioner to amend the written statement has been declined, the petitioner has invoked the extraordinary jurisdiction vested in this Court under Article 227 of the Constitution of India with a prayer that impugned order may be set aside and the application under Order VI Rule 17 CPC may be allowed.

(2.) On behalf of the petitioner it has been submitted that the petitioner is owner of the suit property and had been in uninterrupted possession of the same prior to the year 2001 till date. The physical possession of the suit property was never handed over at any point of time to Shri B.D.Arora. The trial in the suit is at the initial stage as the respondent/plaintiff is under cross-examination. When the case was listed for cross-examination of the respondent/plaintiff, with a view to avoid any technical objection during cross-examination, the amendment application to seek amendment of written statement has been filed on 21st April, 2014.

(3.) Mr.G.P.Thareja, learned counsel for the petitioner urged that the amendment sought for by the petitioner who is defendant in Civil Suit No. 364/14, does not introduce any new defence and that amendment to the written statement is not on the same footing as amendment to the plaint. Further the proposed amendment was imperative for proper adjudication of the case, bonafide and causing no such prejudice to the opponent which cannot be compensated in terms of cost. The amendment could not have been declined on ground of due diligence and otherwise also 'due diligence' does not apply to the facts sought to be pleaded by way of amendment which are in the nature of clarification to the pleas already taken in the written statement in addition to legal pleas which can be taken even at the stage of appeal. The proposed amendment is necessary for just decision of the case and the impugned order being perverse is liable to be set aside. Learned counsel for the petitioner has contended that dismissal of the amendment application by the learned trial Court placing reliance on Raj Kumar Gurawara (Dead) through LRs Vs. S.K.Sarogi & Company, 2008 AIR(SC) 2303 was wrong as in that case the application seeking amendment was filed during the course of arguments whereas the petitioner has sought amendment at the stage when PW-1 is still under cross-examination.