ORDER :

Heard.

1. The petitioner has challenged the order dated 18.08.2023 passed by the learned Xth Civil Judge Class-II Durg, Chhattisgarh in Civil Suit No. 44-A/2013 whereby an application moved by defendant No.1 under Order 6 Rule 17 of the CPC has been rejected.

2. The facts of the present case are that respondent No.1/plaintiff filed a Civil Suit on 01.03.2013 for the declaration of title and permanent injunction against the petitioner wherein the plaintiff prayed that a declaration be issued in his favour to the effect that the plaintiff may be declared the owner of the suit property situated in Village Risali, Patwari Circle No. 65/19, Survey No.321 ad-measuring 1624 sq. ft. and the construction situated over it known as ‘Surya Restaurant’ and also sought relief that he may be permitted to mutate his name in the revenue records.

3. The original defendant No.1 namely, G. Rajan met with an accident and became mentally unfit therefore, an application under Order 32 of the CPC was moved by his wife to pursue the civil suit and contest the case as the next friend which was allowed vide order dated 11.04.2017. She filed the written statement on 16.08.2017. In the written statement, it was specifically pleaded that an oral agreement was entered between the plaintiff and defendant No.1 for the sale of Surya Restaurant for an amount of Rs. 13.50 lakhs out of which an advance amount of Rs. 1 lakh was received through two cheques and an amount of Rs. 2 lakhs was again received through four cheques on 01.01.1999, total Rs. 3 lakhs was received out of the agreed amount.

4. It is stated in the written statement that a Civil Suit for Specific Performance of Contract was filed bearing Civil Suit No. 65-A/2007 where the learned XIIth Additional District Judge in its judgment dated 25.06.2010 has not found the plaintiff to be entitled to the decree of specific performance. The petitioner further stated in the written statement that the plaintiff ought to have valued the suit at Rs. 11,58,098/- and the Court Fees ought to have been paid accordingly.

5. Later on, the wife of defendant No. 1 got a declaration executed by the plaintiff wherein in para 3, the plaintiff admitted to repay the outstanding loan of Nagrik Sahakari Bank Sector 6, Bhilai and also undertook to pay the amount to defendant No. 1 - N. Rajan for Rajan Poultry Farm, Uttai. Thereafter, defendant No. 1 through the next friend moved an application under Section 65 of the Evidence Act to prove the contents of the declaration by leading secondary evidence.

6. The plaintiff/respondent No.1 filed the reply to the said application and vide order dated 27.03.2023, the learned Trial Court allowed the application filed under Section 65 of the Evidence Act and the aforesaid declaration was admitted as secondary evidence in the case. Thereafter, the petitioner/defendant No.1 moved an application under Order 6 Rule 17 of CPC on 27.06.2023 for amendment in the written statement to the effect that a declaration was executed in favour of the defendant No.1 by the plaintiff wherein it was admitted that in lieu of agreement to sell the suit property, the plaintiff agreed pay the loan taken from Nagrik Sahkari Bank Branch Sector 6, Bhilai and he also undertook to pay the amount to defendant No.1 for Rajan Poultry Farm, Uttai. In the application, the petitioner has stated that the document was not in the possession of the next friend of defendant No.1, the said document goes to the root of the case and the proposed amendment would not change the nature of the suit.

7. The plaintiff filed the reply and stated that earlier an application was moved by defendant No.1 for notice to admit the document and the same was rejected. It is further stated that in the written statement there is no whisper regarding the document of re-declaration. It is also stated that if the document was available with defendant No.1, why it was not filed along with the written statement. It is also mentioned in the application