IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT ON THE 2^nd OF MAY, 2022 MISC. PETITION No. 5773 of 2018 Between:-

DEEPAK S/O SHRI TRILOK CHAND JI SONI , AGED ABOUT 40 YEARS, OCCUPATION: BUSINESS INFRONT OF VITTHAL MANDIR BOMBAY BAZAR WARD KHANDWA (MADHYA PRADESH)

.....PETITIONER (BY SHRI SANJAY SARWATE, ADVOCATE )

AND RAJESH S/O SHRI KANWAR CHAND JI JAIN , AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS SARAFA BAZAR KHANDWA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI AVINASH ZARGAR, ADVOCATE )

This petition has come up for hearing on this day and the court passed the following:

ORDER

Petitioner has filed this petition challenging order dated 1.11.2018 passed in Civil Suit No.213-A/2016 by First Civil Judge Class-II, Khandwa.

2. Petitioner was defendant before trial court. He filed an application for proposed amendment in the written statement. Application filed by petitioner was dismissed by the trial court on the ground that petitioner has not explained why application for proposed amendment could not be filed earlier after exercising due diligence. It was held that proposed amendment is not material and is not of such a nature that it will aid court in dispensation of justice.

3. Learned counsel for petitioner submitted that amendment of plaint is different from amendment in written statement. Petitioner is defendant before the trial court. Proposed amendment is filed only to elaborate facts pleaded in written statement. Proposed amendment will not introduce a new case which will prejudice the plaintiff and by said amendment no pleading is sought to be withdrawn. In Signature Not SAN Verified these circumstances Court below had committed an error of law in dismissing the Digitally signed by MONSI M SIMON application for proposed amendment. Learned counsel for petitioner also submitted that proviso under Order 6 Rule 17 CPC, is not applicable in written statement. Learned counsel has placed reliance on judgment reported in State of Bihar and others vs. Modern Tent House and Another, AIR 2017 (SC)

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4. Learned counsel for respondent supported the order passed by trial court. It is submitted that mandatory provision of Order 6 Rule 17 CPC has not been complied with and trial court has not committed any error of law in dismissing the application filed by petitioner/defendant.

5. Heard the learned counsel for the parties.

6. Trial in civil suit has commenced therefore petitioner/defendant ought to have satisfied the court why after exercise of due diligence application for proposed amendment could not be filed.

7. Learned counsel for petitioner has submitted that application for proposed amendment in written statement is to be allowed liberally. He has relied on judgment reported in Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others, AIR 2007 SC 1663 and order dated 24.1.2020 passed in M.P No.3459/2019 (Pramod vs. Smt. Veena Devi and others)

8. In the aforesaid cases question of commencement of trial and delay in filing application was not under consideration. Application which was filed after commencement of trial can be allowed if proposed amendment is necessary for determining the real question in controversy between the parties. Petitioner has failed to show that proposed amendment will touch real question in controversy between the parties. Petitioner/defendant has not pleaded anything in his application under Order 6 Rule 17 of CPC to show that despite due diligence, petitioner could not have raised the matter before commencement of trial. Application for proposed amendment is to be considered liberally, but that does not mean that proviso of Order 6 Rule 17 CPC can be overlooked. Party has to place some material to show that inspite of due diligence, party could not have raised the matter before commencement of trial. In absence of pleading to meet Signature Not out due diligence clause, court cannot overlook the defect and allow application SAN Verified liberally.

Digitally signed by

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