Amendments to pleadings under CPC require showing due diligence and must be justified; failure to do so results in dismissal of such applications.

JUDGMENT (ORAL)

C. Hari Shankar, J.

1. This petition, under Article 227 of the Constitution of India, assails order dated 3rd January 2022 passed by the learned Civil Judge in CS 84960/2016 (Nisha Taneja v. Sarita Ravi). By the said order, the learned Civil Judge has dismissed two applications preferred by the defendant under Section 151 of the Code of Civil Procedure, 1908 (CPC).

2. Though both applications were preferred under Section 151, the learned Civil Judge has treated them as applications under Order VI Rule 17 and Order XVIII Rule 17 of the CPC, inasmuch as the first application sought to amend the written statement and the second application sought permission to recall PW-1 for cross-examination.

3. Mr. Lalit Bhardwaj, learned Counsel for the petitioner, submits, at the very outset, that the second application under Order XVIII Rule 17 of the CPC would survive for consideration only if the first application under Order VI Rule 17, seeking amendment in the written statement, were to be allowed.

4. As such, the occasion for this Court to examine the impugned order qua the second application under Order XVIII Rule 17 of the CPC would arise only if the court were to find the impugned order to be vulnerable to challenge insofar as it rejects the petitioner's application under Order VI Rule 17 of the CPC.

5. For the purposes of the present order, it is not necessary to enter into the details of the controversy between the parties.

6. Suffice it to state, therefore, that, consequent to completion of pleadings, issues were framed in the suit by the learned Civil Judge on 8th March 2017, whereafter trial commenced. Recording of the evidence of the respondent, as the plaintiff in the suit, concluded on 17th August 2019. The matter was, thereafter, pending for recording of the evidence of the petitioner, as the defendant in the suit, when, on 5th April 2021, the application for amending the written statement was filed by the petitioner.

7. The necessity to amend the written statement, as per the application filed by the petitioner, was because the written statement, as originally filed, did not specifically traverse the assertions in the plaint. The petitioner, therefore, sought, by the amend, to introduce specific traversals to the factual and legal assertions in the plaint filed by the defendant. Clearly, therefore, the amendments were substantive, and not merely in the nature of formal or procedural changes.

8. As the learned Civil Judge has correctly held, therefore, the application would have to be examined in the light of the proviso to Order VI Rule 17.

9. Order VI Rule 17 of the CPC reads thus:

"17. Amendment of pleadings. -

10. As the application of the petitioner for amendment of the written statement was filed after commencement of trial, the petitioner was required, in the application, to show, positively, that the averment which was sought to be included by way of amendment could not be raised before commencement of trial despite due diligence. In other words, the petitioner would have to establish the existence of two ingredients, viz., that (i) there was exer