Allahabad High Court
Amit Gupta vs Gulab Chandra Kanodia on 27 November, 2021
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- S.C.C. REVISION No. - 115 of 2021 Revisionist :- Amit Gupta Opposite Party :- Gulab Chandra Kanodia Counsel for Revisionist :- Rohan Gupta Counsel for Opposite Party :- Saurabh Srivastava Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Rohan Gupta, learned counsel for the revisionist and Sri Saurabh Srivastava, learned counsel for plaintiff-respondent.
2. This revision under Section 25 of Provincial Small Cause Courts Act, 1887 arises out of order dated 19.10.2021 passed by Additional District and Sessions Judge, Court No. 7, Kanpur Nagar dismissing the amendment application of the defendant-revisionist in S.C.C. Suit No. 132 of 2009 under Order VI, Rule 17 C.P.C.
3. Facts in nutshell, are that plaintiff-respondent filed a suit for arrears of rent and ejectment in the court of District Judge, Kanpur Nagar being Suit No. 132 of 2009. It was averred that plaintiff was the owner and landlord of premises No. 32/17, Express Road, Kanpur Nagar, and basement and ground floor of the said premises was let out to defendant-revisionist at monthly rent of Rs.10,000/-, which included Rs.5,000/- as rent and Rs.5,000/- towards maintenance charges, since 01.08.2005.
4. As default was committed by defendant in payment of rent, the said suit was filed. Defendant-revisionist contested the aforesaid suit by filing written statement on 31.07.2010, wherein in para 3 of written statement the averment made in para 2 of plaint was not denied and was stated that it was upon plaintiff to prove the execution of the agreement. An application under Order VII, Rule 11 C.P.C. was filed by defendant-revisionist which was rejected on 19.12.2013, thereafter, again an application under Order VII, Rule 11 was filed which was again rejected. The third application filed under Order VII, Rule 11 by defendant-revisionist on 24.08.2021 was not pressed by revisionist on 24.09.2021. However, an amendment application was filed on 30.09.2021 for amending the written statement by inserting Para 12-A and 12-B wherein the plea was sought to be introduced that the rent claimed at Rs.5,000/- per month by landlord included Rs.1,500/- as rent and rest of amount as security charges. An objection was filed by plaintiff-respondent on 04.10.2021 specifically stating that after affirming of issues the oral testimony of PW-1 was recorded and was cross-examined by defendant-revisionist. The application filed under Order VI, Rule 17 after 11 years has been filed to delay the matter, and the same is barred by proviso to Order VI, Rule 17 as the trial had already commenced. The court below after hearing the parties on 19.10.2021 rejected the amendment application. Hence, the present revision.
5. Sri Rohan Gupta, learned counsel for defendant-revisionist submitted that document relied upon by plaintiff-respondent as rent agreement is an unregistered document and the amendment has been sought to clarify the position that rent of Rs.5,000/- included the rent and other charges including the taxes. He next submitted that amendment was necessary for determining the real question in controversy and the court may allow amendment subject to imposition of cost. Reliance has been placed upon decision of co-ordinate Bench of this Court in case of Ishaq @ Gama Ahmad vs. Smt. Champa Devi, 2016 (117) ALR 742, Para Nos. 11 and 12, which are extracted hereasunder:-
"11. In the light of the aforesaid principles of law laid down by the Hon'ble Supreme Court and this Court and also looking to the nature of the amendment of the pleadings sought to be made in the written statement, I find that the proposed amendment is legal in nature which does not cause any prejudice to the opposite party land lady. The amendment application cannot be refused only on the ground that the matter is old and there is a direction of this Court to decide the case expeditiously because the courts are expected to do justice between the parties and not to go into the technicalities.
12. In view of the above, the S.C.C. Revision No.117 of 2015 deserved to be allowed and the order dated 19.09.2015 rejecting the amendment application of the revisionist tenant is set aside. Consequently amendment application Kha 61 seeking amendment of additional written statement is allowed. The revisionist tenant is permitted to carry out the correction in the additional written statement within a period of two weeks from the date of this judgment.
6. He has relied upon a decision of this Court in case of State of U.P. and others vs. Ashok Kumar and others, 2015 (2) AWC 1549, Para Nos. 39, 40, 41 and 42 which are extracted hereasunder:-
"39. Thus, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action.
40. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. Thus, by way of amendment alternate/inconsistent plea can be taken in the written statement.
41. So far as argument advanced from the side of the plaintiff-respondent that no necessity has been shown rather there is no pleading that why the amendment has been sought in the written statement is concerned, a plain and literal meaning to provisions of Order VI Rule 17 of CPC, shows that it enables the parties to amend a plaint or written statement and there is no necessity to plead that application for amendment could not be moved in spite of due diligence. Meaning thereby, provisions of Order VI Rule 17 of CPC does not prohibit to amend a plaint or written statement while considering the application for amendment, Courts have to see whether amendment is necessary to decide the real controversy and no prejudice and injustice is caused to other parties. Hence, the same has got no force, rejected.
42. One of the argument advanced in the matter is that by way of amendment, the admission made by the appellant/defendant will completely change the nature of defence taken by the defendant in the written statement. Even assuming that there was admission made by the appellant in his written statement then such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence. As it is well settled law that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Additing a new ground of defence or substituting or altering a defence does not raise the same problem as adding altering, substituting a new cause of action. It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the later and addition of a new ground of defence or substituting or altering a defence or taking on consistent pleas in the written statement can also be allowed. (See Baldeo Singh and others v. Manohar Singh and another (2006) 6 SCC 498).
7. Sri Saurabh Srivastava, learned counsel appearing for plaintiff-respondent submitted that the sole purpose of filing the amendment application after lapse of 11 years was only to delay the proceedings before the court below, as the defendant-revisionist had already on three occasions had filed application under Order VII, Rule 11 C.P.C. which has been rejected. He next submitted that in para 3 of written statement there has been no denial to the averment made in para 2 of plaint wherein it has been specifically stated that after the execution of agreement between the parties the premises in question was let out at monthly rent of Rs.10,000/- which included Rs.5,000/- as rent and remaining Rs.5,000/- as maintenance charges. By the present amendment the revisionist was trying to introduce a totally new case which was never before the court for last 12 years. He relied upon decision of the Apex Court in case of S. Malla Reddy vs. Future Builders Cooperative Housing Society and others, (2013) 9 SCC 349 Para 27, which is extracted hereasunder:-
"27. Although the appellant-defendants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order 6 Rule 16 CPC, but in substance the application was dealt with as if under Order 6 Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the appellant-defendants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff Society (the respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the appellant-defendants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order 8 Rule 9 or Order 6 Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order 6 Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order 6 Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the appellant-defendants under Order 6 Rule 16 and Order 8 Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order 6 Rule 17 CPC is wholly misconceived and was not entertainable.
8. I have heard the rival submissions and perused the material on record.
9. The present proceedings arises out of the order passed by court below rejecting the amendment application. The legislature by amendment w.e.f. 01.07.2002 had inserted proviso to Order VI, Rule 17 which provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to conclusion that inspite of due diligence, the parties could not have raised the matter before commencement of trial. The said amendment was challenged before the Apex Court in the case of Salem Advocate Bar Association, T.N. vs. Union of India, (2005) 6 SCC 344, wherein the Apex Court while upholding the amending Act No. 22 of 2002 held as under:-
"26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
10. Thus, in the suit filed after 01.07.2002, once the trial commences the application for amendment cannot be allowed unless and until the court comes to conclusion that inspite of due diligence the parties could not have raised the matter before commencement of trial.
11. It is not in dispute that suit for arrears of rent and ejectment was filed in the year 2009 and written statement was filed in the year 2010. It is admitted to defendant-revisionist that oral statement of PW-1 was recorded on 17.09.2012. In the cross-examination no such question was put by defendant-revisionist as regards the rent at Rs.1,500/- and remaining amount as maintenance charges or taxes. Similarly, PW-2 was cross-examined on 17.12.2012 and in the cross-examination no such question was put to PW-2 by defendant-revisionist and it is only after 9 years that by way of an amendment that an application on 30.09.2021 has been moved by defendant-revisionist. Once the defendant-revisionist had cross-examined both PW-1 and PW-2, no question arises to introduce new fact after 9 years when the said plea was available with the defendant-revisionist who is the tenant of the occupation in question. The Apex Court while dealing with the issue of amendment of pleading, especially the amendment of written statement had held that such amendment can be allowed in a written statement but once the trial commences the same is not permitted.
12. In Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498, the Apex Court held as under:-
"9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the courts from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, the court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.
13. In view of this decision, it can be said that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Accordingly, we do not find any reason as to why amendment of the written statement introducing an additional plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which is not permissible in law. We have already examined the statements made in the written statement as well as the amendment sought for in the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement.
14. As noted hereinearlier, the case set up by the plaintiff-Respondent 1 was that his parents had no money to purchase the suit property and it was the plaintiff-Respondent 1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in the written statement that the suit property was in fact purchased by their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff-Respondent 1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff-Respondent 1 had sufficient income to pay the sale price. It was only pointed out in the application for amendment that after the death of their parents, the suit property was mutated in the joint names of the plaintiff-Respondent 1 and the defendants in equal shares. Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted hereinearlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true that in the original written statement, a statement has been made that it is Defendant-Appellant 1 who is the owner and is in continuous possession of the suit property, but in our view, the powers of the court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the trial court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendant-appellants in their written statement. That apart, in Estralla Rubber v. Dass Estate (P) Ltd. [(2001) 8 SCC 97] this Court held that even if there were some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff-Respondent 1 so as to take away any accrued right.
17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."
13. In Ajendraprasadji N. Pandey and another vs. Swami Keshavprkeshdasji N. and others, (2006) 12 SCC 1, the Apex Court held as under:-
"59. In the instant case, the appeal was filed in the second round on 9-10-2002 as could be seen from the dates and events mentioned in the counter-affidavit. Special leave petition in this Court was filed on 7-7-2004. Additional written statement has been filed on 24-11-2005. Delay in filing the additional written statement from 9-10-2002 to 24-11-2005. From 9-10-2002, the matters sought to be introduced by the defendant by way of additional written statement was known to the defendant-appellant. The application in respect of additional written statement does not make an unequivocal averment as to due diligence. The averment only reads as follows:
"Under the circumstances, the facts which were submitted in the said appeal from order before the High Court and the facts which are now being submitted in the present application could not be submitted before this Court in spite of utmost care taken by the defendants."
60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence. As held by this Court in Kailash v. Nanhku [(2005) 4 SCC 480] the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
61. We can also usefully refer to the judgment of this Court in Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] for the same proposition. A perusal of the proposed amendment would show that it contains numerous averments. So far as the averments in the proposed amendments are concerned, at p. 12 of the order in para 22, the appellants admit that all the issues raised by way of proposed amendment in the written statement were taken before this Court in the appeal from order filed by the present defendants in the civil appeal filed before this Court and again in the special leave petition filed subsequently. As rightly pointed out by learned Senior Counsel, any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect."
14. In Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the Apex Court categorically held that proviso to Order VI, Rule 17 is couched in a mandatory form, and court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied. Relevant Paras 10, 11 and 19 are extracted hereasunder:-
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which 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 couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
15. Similarly, dealing with amendment of written statement in Sushil Kumar Jain vs Manoj Kumar and another, (2009) 14 SCC 38, the Apex Court held that the principle of amendment of a plaint and a written statement are not necessarily governed by exactly the same principle. In a case of amendment of written statement the courts would be liberal in allowing than that of a plaint as the question of prejudice would be far less but the court held that once the trial has commenced the proviso to Order VI, Rule 17 would be applicable.
16. The Court relied upon the earlier decision of Apex Court in case of Panchdeo Narain Srivastava vs. K. Jyoti Sahay, 1984 Supplementary SCC 594 wherein it was held that admission made by a party may be withdrawn or may be explained, but the court was clear of the view that the benefit could not be extended in case of commencement of trial.
17. In Ram Niranjan Kajaria vs. Sheo Prakash Kajaria and others, (2015) 10 SCC 203, the Apex Court relying upon its earlier judgment held as under:-
"20. On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons (2009) 10 SCC 84, after referring to Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85], the principles on amendment have been summarised at para 63. It has been held as follows: (Revajeetu Builders case (2009) 10 SCC 84, SCC p. 102) "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam [(1974) 1 SCC 242] . To quote para 27: (SCC pp. 251-52) "27. From a conspectus of the cases cited at the Bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could [Ed.: The word "could" has been emphasised in original.] be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
(emphasis supplied)
23. We agree with the position in Nagindas Ramdas [(1974) 1 SCC 242] and as endorsed in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava[Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594] , does not reflect the correct legal position and it is overruled.
24. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in substantive proceedings. In this context, we are also mindful of the averment in the application for amendment that:
"11. ... Mahabir Prasad Kajaria died at the age of 24 years on 7-5-1949 when Defendant 5 was only 2 years and Defendant 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. Defendant 5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now as members of the joint family. In the marriage of the two sisters of Defendant 5 Kusum and Bina (now after marriage Smt Kusum Tulsian and Smt Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations."
18. Thus, position which comes out from the above decisions of Apex Court are that after validity of Act No. 22 of 2002 was upheld in case of Salem Advocate Bar Association (supra), the court has to take note of the fact that once the trial is commenced which includes the framing of charges, statement of witnesses, filing of documentary evidences and hearing of the suit that amendment in the pleadings cannot be ordinarily allowed and only when the courts come to conclusion that despite due diligence the parties could not have raised the matter before commencement of trial that such applications can be allowed. In the present case, it is admitted to both the parties that PW-1 was cross-examined on 17.09.2012 while PW-2 was cross-examined on 17.12.2012 and amendment being sought through the application was available to defendant-revisionist at that time but no such question was put to plaintiff witnesses 1 and 2. The application filed at the behest of defendant-revisionist after a lapse of 9 years from recording of statement itself is an ample proof that it has been filed to delay the matter.
19. The S.C.C. Suit has been filed in the year 2009 and after 12 years the application for amendment of written statement is being sought.
20. Moreover, Order VIII, Rule 5 mandates that denial should be specific, and every allegation of fact in the plaint if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of defendant shall be taken to be admitted. There is a specific averment in Para 2 of plaint as to quantum of rent and maintenance charges. In Para 3 of written statement there is no denial to the said fact nor the defendant-revisionist has stated that he is not admitting the averment of the plaint. The only statement made is that it is for the plaintiff to prove the allegations made in the said paragraphs, meaning thereby that the averment has been admitted by defendant-revisionist.
21. If the rent was not admitted to defendant and by mistake in the pleading it was not denied, he had the opportunity to cross-examine the plaintiff witnesses in regard to quantum of rent and maintenance charges, which he failed to do so.
22. Considering the facts and circumstances of the case, this Court finds that no interference is made out in the order impugned dated 19.10.2021 rejecting the amendment application of defendant-revisionist filed under Order VI, Rule 17 C.P.C.
23. Revision lacks merit and is hereby dismissed.
Order Date :- 27.11.2021 V.S.Singh