Hon'ble BHANDARI, J.—By this writ petition, a challenge has been made to the order dated 7.11.2009.

2. By the aforesaid order, two application were decided by the Court below. So far as this writ petition is concerned, it pertains to the order on an application made by the plaintiff respondents under Order VI Rule 16 of the Code of Civil Procedure (CPC). Aforesaid application was filed to delete new facts in the amended written statement.

3. It is a case where a suit for eviction was filed. During pendency of the suit, plaintiff respondents moved an application under Order XXII rule 3 CPC, which was allowed, accordingly plaintiff respondents were permitted to file amended plaint/application. Defendant petitioner, thereupon, filed amended written statement containing additional facts than the facts mentioned in earlier written statement. Plaintiff respondents raised objection for addition of new facts in the written statement ignoring provisions of Order XXII rule 3 CPC. This is more so when application for amendment in written statement was earlier dismissed by the court below vide its order dated 29.2.1996 followed by yet another application for amendment and dismissal thereof vide order dated 6.5.1998. Petitioner defendant yet added those facts while filing amended written statement.

4. Learned counsel for petitioner submits that when the plaintiff respondents were permitted to amend his plaint/application then defendant petitioner was legally entitled to submit his amended written statement by incorporating all the pleas available to him. Taking note of the aforesaid, amended written statement was containing new pleas and facts and it is wrongly been ordered to be deleted by the impugned order. To support his arguments, reference of the judgment in the case of "Maqsooda vs. Abdul Karim & Ors." reported in 1996 (3) WLC (Raj.) 87 = RLW 1996(2) Raj. 70 has been given. In view of the submissions aforesaid, prayer is made to set aside the impugned order to the extent is challenged in this writ petition.

5. Learned counsel for respondents, on the other hand, submits that there is no illegality in the impugned order. Plaintiff respondents made an application under Order XXII rule 3 CPC to bring legal heirs on record on account of death of plaintiff thus no amendment was made in the averments. Provision of Order XXII rule 3 CPC does not give any right to the defendant petitioner to amend the averment in the written statement. Petitioner, in fact, earlier also made an application for amendment in the written statement which was dismissed followed by dismissal of even another application containing same prayer. The orders so passed on those applications were not challenged by the petitioner, hence, attained finality. Petitioner has now made amendments in the written statement, which were earlier not permitted. Looking to the scope of Order XXII rule 3 CPC amendment in the written statement to bring new averments therein is not permissible. So far as case of Maqsooda (supra) is concerned, it was in reference to the provision under order XXII rule 4 CPC. Aforesaid provision permits filing of written statement with new pleas. Thus, judgment in the case of Maqsooda (supra) has no application to the present case. Thus, court below has rightly allowed the application.

6. I have considered rival submissions made by learned counsel for parties and scanned the matter carefully.

7. It has not been disputed by the parties that petitioner made an application for seeking amendment in the written statement. The application was dismissed by the court below firstly on 29.2.1996. Same application filed again was dismissed vide order dated 6.5.1998. It is on an application filed by the respondents under Order XXII rule 3 CPC on account of death of plaintiff that amended plaint was allowed to be filed. The amended plaint was not containing new facts or averments. In fact, it was filed in view of amendment in the cause title. The defendant petitioner thereupo

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