BALBIR SINGH Vs. RAHDEY SINGH

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 challenges order dated 7.4.2003 passed by the learned Additional District Judge, Panipat, dismissing the application of the defendant-petitioner for amendment of the written statement by setting up a plea that the property was ancestral in character. The defendant-petitioner had lost the suit and decree dated 18.8.1999 was passed in favour of the plaintiff-respondent. The application for amendment under Order 6 Rule 17 was filed during the pendency of the appeal. The learned Additional District Judge dismissed the application primarily on-the ground that if the amendment is permitted at the appellate stage, it would change the nature of the suit substantially and the case of the plaintiff-respondent would be materially prejudiced.

(2.) AFTER hearing Mr. Narender Hooda, learned counsel for the defendant- petitioner, I do not find any legal infirmity in the orders passed by learned Additional District Judge and uphold the same. Moreover, this Court in Bikramjeet Singh v. Ramesh Kumar and others, 2002(3) PLR 780 : 2003(1) RCR(Civil) 350 (P&H)has held that no revision petition is maintainable against such an order. Still further, the proviso appended to Order 6 Rule 17 makes it abundantly clear that no amendment can be permitted after the commencement of the trial unless it is established that inspite of due diligence, the plea of seeking amendment was not available to be raised before the commencement of the trial. The plea that the property in dispute was ancestral in character was very well known to the defendant-petitioner even before the filing of the suit. The provisions of Order 6 Rule 17 are mandatory in character. Therefore, the order of the learned Additional District Judge is upheld and the revision petition is dismissed. Revision dismissed.