NIRMAL SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) Defendant - petitioner is assailing the order dated 9.8.2010 passed by the Additional Civil Judge, Senior Division, Sangrur, thereby rejecting the defendant's amendment application moved Order 6 Rule 17 CPC.

(2.) Brief facts of the present case, inter-alia, are that the plaintiff has filed suit for possession by redemption against the defendant specifically pleading that plaintiff has mortgaged the shop in favour of the defendant vide mortgage deed dated 3.8.1994 for mortgage money of Rs. 10,000/-. Defendant - petitioner herein filed written statement stating therein that he has taken the shop in dispute on rent from the plaintiff and has paid Rs. 10,000/- as security to the plaintiff and in lieu of the security, alleged mortgage deed was executed. Thereafter, trial commenced and plaintiff's evidence was recorded. When the case was listed for defendant's evidence, present amendment application was moved by the defendant seeking permission from the Court to add in paragraph 2 of the written statement pleading to the effect that earlier also, defendant was the tenant of the father of the plaintiff and he wanted bigger shop, hence he took the present shop from the plaintiff as a tenant on rent.

(3.) The trial Court has observed that the fact that plaintiff was tenant of the father of the plaintiff of another shop, is not relevant for the purpose of deciding the lis between the parties. Shop under tenency of the defendant from the father of the plaintiff is not in dispute. The trial Court has further observed that the defendant was well aware that he was tenant of the plaintiff's father of another shop and that defendant could not prove that despite of due diligence, he could not take this plea which was well within his knowledge at the time of filing of the written statement.