A.N. JINDAL, J (ORAL)

The order dated 06.04.2012 (Annexure P-5) passed by the Additional District Judge, Ludhiana, dismissing the application filed by the petitioner under Order 6 Rule 17 CPC for amendment of the written statement, is under challenge.

Learned counsel for the petitioner states that the proposed amendment in para No.2 of the preliminary objections, has already been pleaded in para No.18 of the written statement, but just to make clarification of the preliminary objections, the petitioner wanted to make necessary amendment in para No.2 of the preliminary objections.

The adversary contends that the respondent has already filed rejoinder to the written statement and the trial has already commenced, therefore, the petitioner cannot be allowed to amend her written statement. In support of his contention, he has placed reliance on the judgments delivered by the Hon'ble Supreme Court in cases Raj Kumar Gurawara (dead) through LRs. Vs. S.K. Sarwagi and Company Private Limited and another, (2008)14 Supreme Court Cases 364 and Vidyabai and others Vs. Padmalatha and another, (2009) 2 Supreme Court Cases 409.

Heard. Both the parties accept that the evidence of the petitioner had already commenced at the time when this application was filed.

Record reveals that the proposed amendment would not change the nature of the suit because the fact regarding desertion, sought to be incorporated by way of amendment, has already been introduced in para No.18 of the written statement and no further issue shall be required to be framed after the amendment. However, the defendant wants to further elaborate the said plea by way of amendment.

The judgments, relied upon by learned counsel for the respondent in Raj Kumar Gurawara's and Vidyabai's cases (supra) are not applicable to the facts of the present case.

It is not absolute proposition of law that the amendment cannot be allowed even after the trial commences. This Court in case Tejinder Singh Vs. Surjit Rai and another, 2011(3) PLR 318, has held as under:-

“7. The rule is divided into two parts. First part speaks for a making amendment liberally at any stage of the proceedings before the trial commenced. The object of the rule was not to dis-allow the relief to the plaintiff merely for a technical defect, error or omission made by him in his pleadings and if he had left anything in the plaint or it unnecessarily took such plea, then he could apply for adding or deleting such pleas by way of amendment. However, vide Civil Procedure Code, Amendment of 1999, with a view to avoid the delay in adjudication of the issues, the legislature thought of deleting the provision, however, on account of raising hue and cry by the legal fraternity at large, this rule with amended shape was brought on the statute book w.e.f. 1.7.2002 by the Act No.22 of 2002. This amended provision consists of two parts. The first part has been discussed above, whereas, in the second part, no absolute bar has been created by the statute regarding amendment of the pleadings yet, it envisaged that no application for amendment shall be allowed after the commencement of the trial. However, if the parties to the proceedings are able to satisfy the Court that in spite of the due diligence, the party could not raise issue before the commencement of the trial and the Court on having been satisfied about the explanation submitted before it, could allow the amendment even after the commencement of the trial. The law of amendment has been very liberal since the very beginning. It envisages that at the time of deciding the application for amendment, the approach of the Court should be liberal to ensure that substantial justice is not denied. The procedural law is handmaid of the administration of justice, meant to advance its cause, than to frustrate the same. When the substantial justice and the procedural law come in confrontation with each other, then the former would prevail over the later. It was observed in case Jai Jai Ram