NEEM CHAND Vs. SARVINDER KUMAR

JUDGEMENT

(1.) CMP No. 11744 of 2018 By medium of this application the applicants-tenants have sought permission to amend their reply filed to the eviction petition. A perusal of the application would show that entirely a different case is proposed to be set up in the reply by adding following sub para to existing para-13 of the reply:-

(2.) The eviction proceedings were initiated in the year 2011 and there is no reason forthcoming as to why the aforesaid defence was not taken either before the Rent Controller or before the first Appellate Court. It was not even pleaded that in spite of due diligence, the tenant could not have raised the matter for which the amendment is sought at this stage.

(3.) It is more than settled that leave to amend may be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the case. Be it the plaint or the written statement, the proviso to Order 7 Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after 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. The proviso to an extent curtails the absolute discretion of the Court to allow the amendment at any stage, therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence such amendment could not have been sought earlier.