Amendment of pleadings should be allowed if the party could not have raised the matter before the commencement of the trial despite due diligence.

JUDGMENT

Alka Sarin, J. (Oral) - The present revision petition under Article 227 of the Constitution of India has been filed challenging order dated 08.07.2016 passed by the Civil Judge (Sr. Division), UT Chandigarh vide which the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the written statement filed by the defendant- petitioner no.1 has been dismissed.

2. The brief facts relevant to the present lis are that the plaintiff- respondent herein filed a suit for mandatory injunction for directing the defendants to hand over vacant possession of the first floor of Shop No.28/A/28/1, Village Burail, UT Chandigarh. It was averred in the plaint that the defendant-petitioner no.1 was running a business in the name and style of M/s Galaxy Health Club since April 2003. It was also averred that the plaintiff-respondent had earlier filed a rent petition and in the said rent petition the defendant-petitioner no.1 took a categoric plea that there is no relationship of landlord and tenant between the parties and that the possession was permissive. The plaintiff-respondent withdrew the said rent petition on 19.07.2011 and thereafter the present suit was filed in 2011 itself. The written statement in the present case was filed on 19.04.2012 by the defendant-petitioner no.1 taking a categoric stand therein that the defendant- petitioner no.1 was in permissive possession and that there was an oral settlement which took place between the plaintiff-respondent and defendant- petitioner no.1, who are real sisters, and that the defendant-petitioner no.1 had constructed the first floor of the premises in question and had spent a sum of Rs. 5 lakhs on the construction and also paid an amount of Rs. 5 lakhs in cash to the plaintiff-respondent. Thereafter, issues were framed. The plaintiff-respondent closed her evidence on 18.03.2015. Seven effective opportunities were given to the defendant-petitioner no.1 to lead her evidence. However, she failed to lead her evidence and the present application for amendment of the written statement was moved. By way of amendment the following paragraph was sought to be added in the written statement :

"1(a)That the defendant is running a GYM under the name and style M/s Galaxy Health Club since April 2003. The defendant has showed income from the running of GYM in his Income Tax Return pertaining to the financial year 2003-2004. The defendant is running the said GYM in the property in question continuously since April 2003. The plaintiff had entered into written agreement with the defendant No.1 i.e. her sister on 18.11.2002. The defendant No.1 gave Rs. 5,00,000/- to the plaintiff as per the agreement in lieu of exclusive possession which has been specifically mentioned in the agreement. The defendant No.1 also spent an amount of Rs. 5,00,000/- on the construction of the GYM out of the funds which were generated by the defendant No.1 on the basis of the assurances made by the plaintiff in the agreement. The defendant No.1 generated the funds by selling her jewellery. The defendant has been regularly filing income tax return since 2002-2003 and is showing income from GYM at Burail. The defendant got GYM registered on 25.11.2003 and purchased the major equipments for the functioning of GYM on 08.05.2003 and has been regularly purchasing more machines for running the GYM successfully. The plaintiff has cheated upon the defendant and filed the present civil suit."

3. The defendant-petitioners by way of the amendment want to add the plea that qua the income earned by the defendant-petitioner No.1 from the Gym, income tax return was filed for the financial year 2003-04 and that the Gym had been running in the premises in question since April 2003. The defendant-petitioners also wants to add the plea that on 18.11.2002 the defendant-petitioner No.1 and the plaintiff-respondent had entered into a written agreement and an amount of Rs. 5 lakhs was paid by the defendant-petitioner no