The main legal point established in the judgment is the significance of due diligence in seeking amendments to pleadings after the commencement of trial, as well as the purpose of the amendment to curtail delay and expedite hearing of cases.

JUDGMENT :

1. Heard Shri Divakar Rai Sharma, learned counsel for the defendant-petitioners and Shri G.K. Singh, learned Senior Advocate assisted by Shri Shekhar Gangal, learned counsel for the plaintiff-respondent no.1.

2. This petition has been filed by the defendants of Original Suit No. 155 of 2009 for setting aside the order dated 6.3.2023 passed by the Additional District Judge, Court No. 1, Aligarh in Civil Appeal No. 2 of 2020 (Toni Agarwal Vs. Ramzani and others). Further relief sought is to direct the concerned court to allow the application Paper No. 29 d under Order 6 Rule 17 read with Section 151 of C.P.C. for amending the written statement.

3. It stated that Original Suit No. 155 of 2009 was filed by the plaintiff-respondent seeking permanent prohibitory injunction against the defendant-petitioner as well as the defendant-respondent. It is stated that another suit bearing Original Suit No. 185 of 2009 was filed by the defendant-petitioners and the defendant-respondent against the plaintiff-respondents seeking cancellation of a sale deed. It is stated that both the aforesaid suits were clubbed together and adjudicated by the Civil Judge (Senior Division), Khair, Aligarh and decided by a common judgment and order dated 16.11.2019, whereafter a decree was made. It is stated that the suit of plaintiff-respondent being Original Suit No. 155 of 2009 was dismissed whereafter the plaintiff-respondent filed the aforesaid Civil Appeal No. 2 of 2020. During pendency of the appeal, the defendant-petitioners filed an application Paper No. 29d seeking amendment in the written statement. By the impugned order dated 6.3.2023, the appellate court has rejected the application for amendment.

4. The contention of the learned counsel for the petitioner is that the amendments sought were necessary to adjudicate the real controversy between parties and it was due to a mistake that the amendments could neither be brought on record earlier, nor at the time of filing of the written statement.

5. Learned Senior Advocate appearing for the plaintiff-respondent has opposed the petition and has stated that the appellate court has recorded in the impugned order that the plaintiff-respondent had failed to demonstrate the aspect of due diligence, that is incorporated in the proviso to Order 6 Rule 17 of the C.P.C.. It is further contended that the amendments sought are not such that are material and necessary for purpose of adjudication of the case.

6. It is pertinent to quote Order 6 Rule 17 of the C.P.C. which is as follows:

“17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

7. The amendment application Paper No. 29d has been enclosed as Annexure-5 to the petition in which the proposed amendments have been mentioned. The reasons for filing the amendment application have been stated to be, firstly, by mistake, and, secondly, since the defendants were ignorant of the law, they could not inform the advocate about those facts while filing the written statement. The amendments sought are as follows:

8. A perusal of the written statement that has been enclosed as Annexure-2 to this petition reveals that as far as the sale deed is concerned, the necessary averments regarding the sale deed dated 2.6.2009 has been made in paragraph no. 17 of the written statement. Further averments regarding mutation proceedings and the sale deed dated 2.6.2009 have been made, respectively, in paragraph no. 23 and 24 of the written statement. In paragraph no. 27, it has been ment