Amendments to pleadings under Order 6, Rule 17 CPC are not permitted after trial commencement unless justified by due diligence.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has challenged order dated 22.02.2024 passed by learned Senior Civil Judge, Nalagarh in CMA No. 199/24 in Civil Suit No. 102/1 of 2017, whereby the application of the petitioner for amendment of written statement has been dismissed.

2. Petitioner is the defendant in original suit before the learned trial Court. The parties hereinafter shall be referred by the status as they hold before the learned trial Court.

3. Plaintiff has filed a suit against the defendant for specific performance of agreement to sell dated 11.09.2014. It is alleged that the defendant had agreed to sell the land comprised in Khata/Khatauni No. 33/35, Khasra No. 348/131, measuring 3-18 bighas, situated at Mauza Sauri, Tehsil Nalagarh, District Solan, H.P. for a total sale consideration of Rs.15,60,000/- i.e. @ of Rs.4,00,000/- per bigha. As per the plaintiff, he had paid a sum of Rs.13,00,000/- in advance towards the sale consideration to the defendant at the time of execution of agreement dated 11.09.2014. The plaintiff also claims to have been put in exclusive possession of the suit land at the time of agreement. The balance amount of Rs.2,60,000/- as per the plaintiff was agreed to be paid to defendant on or before 11.09.2015 which was agreed to be the date for execution and registration of sale deed.

4. Plaintiff has further averred that at the time of execution of agreement dated 11.09.2014, the suit land was mortgaged with UCO Bank and Punjab National Bank. The defendant had undertaken to discharge the loan liability and to clear the suit land from all charges before the execution and registration of the sale deed.

5. It is also the case of the plaintiff that he has always been ready and willing to perform his part of his contract but the defendant has backed out. As per the plaintiff, he had visited the office of Sub Registrar for the purpose of execution and registration of sale deed on 11.09.2015 with prior intimation to to the defendant but the defendant had not turned up.

6. The defendant has filed the written statement by raising preliminary objection of maintainability, lack of cause of action, estoppel, limitation etc. On merits, though the defendant has not denied execution of agreement but according to him the plaintiff had paid only a sum of Rs.10,00,000/- to the defendant and since he had not come forward to pay the balance amount to execute the sale deed, the advance paid by the plaintiff stood forfeited in terms of the agreement between the parties. In this manner, the defendant has taken a stand that the agreement between the parties stood determined and the defendant was at liberty to use his land as per his wish.

7. Learned trial Court framed the issues. The plaintiff concluded the evidence and opportunity was provided to the defendant to lead his evidence. Many opportunities were availed by the defendant but he did not lead the evidence despite the fact that costs were also imposed upon him.

8. Lastly, the defendant filed an application under Order 6, Rule 17 of the Code of Civil Procedure (for short “Code”) for amendment of written statement. In the application, it was averred that the plaintiff and defendant were closely related though they were not residing in their ancestral village. As stated in the application, the deal for sale of the suit land was struck between the parties by agreeing on the sale consideration of Rs.6 lakhs per bigha i.e. Rs.23.40 lakhs for the entire land agreed to be sold. The defendant further averred that keeping in view the close relations between the parties, the plaintiff had insisted to mention lesser sale price in the agreement by convincing the defendant that in such a manner the plaintiff would be able to save substantial stamp duty. The defendant also contended that though in the agreement, an amount of Rs.13,00,000/- was mentioned as having been received by the defendant from the plaintiff as advance, but in fact the plaintiff had p