An application for amendment of written statement should be dealt with liberally, and the proviso to Order 6, Rule 17 C.P.C. is not attracted if the trial has not commenced when the amendment application is filed.

Mrs. Sunita Agarwal, J.

Despite repeated calls, learned counsel for the petitioner did not appear.

2. Heard Shri Ramesh Singh, learned counsel for the respondent.

3. The eviction suit no. 1 of 2015 has been filed by the opposite party against the revisionist wherein the written statement was filed on 16.4.2015 raising dispute regarding title to the suit property. It was stated by the defendant-petitioner therein that he was in occupation of the suit property being owner of the same. There is no relationship of landlord and tenant between the parties. On the dispute raised by the parties, five issues were farmed. Out of which issue no.1 was with regard to relationship of landlord and tenant, whereas issue no.4 was framed by order dated 30.10.2015 on application 40 Ga moved by the petitioner that the suit was liable to be dismissed in view of section 23 of the Provincial Small Cause Courts Act, 1887.Upon challenge made by the petitioner to the order dated 30.10.2015 in SCC Revision No. 450 of 2015, it was dismissed vide order dated 13.1.2016 with the direction that court below shall decide the issue no. 4 regarding maintainability of the suit first and then proceed to decide other issues.

4. It appears that the amendment application paper no. 47 Ga was moved on 18.1.2016 after five days of the dismissal of the revision. By means of the amendment application 47 Ga, revisionist again raised the dispute regarding title of the suit property. It appears that by means of the amendment, revisionist seeks to explain the assertion made by him in paragraph-10 of the written statement and sought to be plead that the suit property was purchased by father of the revisionist vide registered sale deed dated 25.11.1942, thereafter, a family arrangement has been arrived between his heirs i.e. three brother of the revisionist on 11.10.1991 and the suit property came in possession of the petitioner on the basis of said family arrangement.

5. The submission of Shri Ramesh Singh, learned counsel for the respondent is that the amendment was filed with a view to delay the disposal of the suit, therefore, earlier application 40Ga under Section 23 of the Act was filed with the same assertion that the suit can not proceed as there was a genuine dispute regarding title of the suit property. On the said dispute relevant issue has already been framed by the court below, there was no justification to file another application.

6. Reliance is placed upon the judgement of Vidyabai & Ors. v. Padmalatha & another, JT 2009(1) SC 303 : 2009 (1) ARC 663 to submit that the amendment cannot be allowed after the trial has commenced, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no amendment of pleading shall be allowed unless the condition/requirement under proviso to Order IV Rule 17 CPC are satisfied. It is stated that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.

7. Having heard learned counsel for the respondent and perused the record. This court finds that in paragraph-10 of the written statement it is specifically stated by the petitioner that he was never inducted as tenant and there was no relationship of landlord and tenant between the parties. The suit property came in possession of the defendant through his predecessor who were in occupation of the property as owner. It was categorically stated that his predecessors were residing in the suit property for about last 100 years. It is also stated therein that constructions were raised by the ancestors of the defendant.

8. Thus it appears that the amendment application 47 Ga was filed giving date of purchase of the suit property by the predecessor of the defendant for the purpose of elaborating the defence which had already been taken by the defendant in the written statement. It is well settled that an application for amendment of written statement should be deal