ORDER:-

The Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 16.12.2019 in I.A.No.885 of 2019 in O.S.No.256 of 2018 on the file of the Principal Junior Civil Judge, Bhimavaram.

2. The application filed Order 6 Rule 17, seeking amendment of the written statement in suit filed by the respondent herein for recovery of money of Rs.7,97,334/-. During the course of trial, the instant application is filed for amendment of the pleadings. It is contended that the suit debt was discharged and the said receipt was not traced out.

3. Heard Smt. A.Jayanthi, learned counsel for the petitioner and Sri V.V.L.N.Sarma, learned counsel for the respondent.

The issues that arise for consideration in the Revision are:

i) Whether the defendant can be permitted to take inconsistent stands in the written statement?

ii) Whether the same can be raised after commencement of trial?

4. The counsel for petitioner in support of her contention that the defendant can take inconsistent stands, relies on the following decisions;

i) Baldev Singh & Others Vs. Manohar Singh & another ii) Rajesh Kumar Aggarwal and Others Vs. K.K.Modi & others 5. In Baldev Singh & Others Vs. Manohar Singh & another, it is held by the Apex Court that inconsistent pleas can be taken by the defendant in the written statement. It was further observed that commencement of trial, as us

1 (2006) 6 SCC 498 2 (2006) 4 SCC 385

used, in proviso to Order 6 Rule 17 C.P.C., must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.

5. In Rajesh Kumar Aggarwal and Others Vs. K.K.Modi & others the Apex Court referring to the provisions of Order 6 Rule 17 C.P.C., and the object of the said provisions, observed that the courts should try the merits of the case that come before them and should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided the amendment does not cause injustice or prejudice to the parties. It was further held that the court should not go into the correctness or falsity of the case in the amendment and should not record a finding on the merits of the amendment and the merits of the amendment are not to be adjudged at the stage of allowing the prayer for amendment.

6. Per contra, the learned counsel for the respondent contends that the petioner/defendant, right from the beginning, denied his liability under the pronote but also expressed that he had no acquaintance with the plaintiff and denied his signature on the pronote, contending it to be a forgery. He contends that the petitioner cannot be permitted to approbate and reprobate. Therefore contends that the amendment sought in the written statement is somersault. An inconsistent and contra plea from the original pleading has been sought. If allowed during the course of trial, the same would cause prejudice to the plaintiff, and he would be caught by surprise. Unless the due diligence as contemplated under the proviso to Or.6 Rule 17 is established, the amendment as sought in the circumstances of the case cannot be permitted. In support of his contention that after the commencement of trial, unless due diligence is established, no application for amendment shall be allowed, he relies on the following decision of the apex court:

1. Chander Kanta Bansal Vs Rajinder Singh Anand 2. Nitaben Dinesh Patel Vs Dinesh Dahyabhai Patel

3. B.K.Narayana Pillai Vs Parameswaran Pillai and Another In B.K.Narayana Pillai Vs Parameswaran Pillai and Another ,wherein it is observed by the Apex Court that inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destruction allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side.

7. The learned counsel for the respondent in support of his con