The High Court set aside an order declining an amendment to the written statement, holding that the omission to mention a prior mortgage deed was due to inadvertence rather than negligence and would not cause prejudice to the litigation.
The impugned order declining amendment is set aside; revision petition allowed subject to payment of costs.
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YOGESH SHARMA 2019.01.18 14:16 I attest to the accuracy and integrity of this document 1
CR-273-2017 (O&M)
209
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-273-2017 (O&M) Date of decision : 14.01.2019
Madan Lal
... Petitioner
Versus
Nathi Ram
... Respondent
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. Sushil Bhardwaj, Advocate for the petitioner.
Mr. Vikram Singh, Advocate and Mr. Abhinav Sood, Advocate for respondent.
AMIT RAWAL, J. (ORAL)
The present revision petition is directed against the impugned order dated 29.11.2016 (Annexure P-6), whereby the application of the petitioner-defendant for amendment of the written statement at evidence stage by incorporating the factum of mortgage deed dated 30.06.2013, in a suit for specific performance of agreement to sell dated 17.11.2011, has been declined.
Learned counsel appearing on behalf of the petitioner submitted that though the mortgage deed is prior to filing of the suit, but this fact could not be incorporated in the written statement due to inadvertence. The amendment is essential and necessary as it would help the Court for adjudication of the lis as to whether the plaintiff would be entitled to discretionary relief or not.
Learned counsel for the respondent supported the impugned
YOGESH SHARMA 2019.01.18 14:16 I attest to the accuracy and integrity of this document 2
CR-273-2017 (O&M)
order and submitted that once the suit was post to the mortgage deed, there was no compliance of expression 'Despite Exercise of Due Diligence' in view of the amendment caused in Order 6 Rule 17 of CPC. The aforesaid amendment is totally a different stand, which cannot be permitted to be incorporated, thus, urges this Court for dismissal of the present revision petition with exemplary costs.
I have heard learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submissions of Mr. Bhardwaj, for, no doubt the petitioner-defendant had not been diligent, rather negligent in incorporating the relief of mortgage, which was six months prior to filing of the suit. It can be said to be not a serious error, but due to inadvertence. No harm and prejudice would be caused to the parties to the lis as both the would be able to lead and rebut the evidence, rather it would help the Court for adjudication of the lis. Accordingly, the impugned order, under challenge, suffers from illegality and perversity and the same is hereby set aside. The revision petition stands allowed subject to the payment of costs of ` 5,000/-, which shall be condition precedent.
14.01.2019
Yogesh Sharma
( AMIT RAWAL ) JUDGE Whether speaking/reasoned Yes/ No Whether Reportable Yes/ No
2 issues framed by the court
Whether the revision petition against the refusal to amend the written statement at the evidence stage ought to be allowed.
Whether the amendment allowing the factum of a mortgage deed prior to the suit file violates the requirement of due diligence under Order 6 Rule 17 CPC.
1 provisions across 1 enactments
Madan Lal
Nathi Ram
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
