# Amit Gupta Revisionist v. Gulab Chandra Kanodia

- **Citation:** (2021) 11 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** S.C.C. Revision No. 115 of 2021
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-gupta-revisionist-v-gulab-chandra-kanodia-45122
- **Pages:** 11

## Headnote

(A) Civil Law - Provincial Small Cause Courts
Act, 1887 - Section 25 - Revision of decrees
and orders of courts of small causes , Code of
Civil Procedure ,1908 - Order VI, Rule 17 -
Amendment of pleadings , Proviso to Order VI,
Rule 17 - no application for amendment shall
be allowed after the trial has commenced,
unless the court comes to conclusion that
inspite of due diligence, the parties could not
have raised the matter before commencement
of trial , Order VII, Rule 11 -Rejection of plaint
, Order VIII, Rule 5 - Specific denial - once the
trial has commenced the proviso to Order VI,
Rule 17 would be applicable. (Para - 15)

Plaintiff-respondent filed a suit for arrears of rent and
ejectment - default committed by defendant in
payment of rent - Defendant-revisionist contested suit
by filing written statement - in para 3 of written
statement averment made in para 2 of plaint was not
denied - stated that it was upon plaintiff to prove the
execution of the agreement - application under Order
VII, Rule 11 C.P.C. filed by defendant-revisionist -
rejected - objection filed by plaintiff-respondent -
specifically stating that after affirming of issues oral
testimony of PW-1 was recorded and was crossexamined by defendant-revisionist - application filed
under Order VI, Rule 17 after 11 years - to delay the
matter - barred by proviso to Order VI, Rule 17 as the
trial had already commenced - court below rejected
the amendment application - Hence, the present
revision.(Para - 3,4)

HELD:- If the rent was not admitted to defendant
and by mistake in the pleading it was not denied, he
had the opportunity to cross-examine the plaintiff
witnesses in regard to quantum of rent and
maintenance charges, which he failed to do so. No
288 INDIAN LAW REPORTS ALLAHABAD SERIES
interference is made out in order impugned
rejecting the amendment application of defendantrevisionist filed under Order VI, Rule 17 C.P.C.(Para
- 21,22)

Revision dismissed.(E-7)

List of Cases cited:-

## Text

_Characters 0–39,995 of 41,152. This is a partial read: ask again with offset=39995 for what follows._

11 All. Amit Gupta Vs. Gulab Chandra Kanodia
287
Kerka Maske v. State of Maharashtra and
another, (2013) 14 SCC 637. She had moved
from one place to another with the accused at
least 17 days but she has not raised any alarm
during that period. With all these observations, it
cannot be said that the findings of facts are
perverse.

21. In view of the above judgments and
facts as discussed above, it would not permit us
to take a different view that taken by the learned
Judge who has acquitted the accused, the
parameters are considered by us. The evidence
on record also will not permit us to take a
different view. Thus, the above-mentioned
decisions will not permit this Court to take a
different view. In this case it is not proved
beyond
doubt
that
the
original
accused
Respondents, herein, indulged into adulteration.
Hence, the present appeal deserves to be
dismissed.

22. While going through the record and the
impugned judgment, the principle enunciated by
the Apex Court for entertaining appeal against
the acquittal, which are reproduced herein
above, will not permit this Court to grant leave
to appeal.

23. Leave Refused.

24. In the result, this appeal fails and is
DISMISSED. The judgment and order of the
trial
Court,
Dated
:
13.09.2019,
stands
CONFIRMED. Bail bonds of the accused, if
any, on bail, stands discharged. Lower Court
Record be sent back to the concerned trial Court,
forthwith.
----------
(2021)12ILR A287
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2021

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

S.C.C. Revision No. 115 of 2021

Amit Gupta ...Revisionist
Versus
Gulab Chandra Kanodia ...Respondent

Counsel for the Revisionist:
Sri Rohan Gupta

Counsel for the Respondent:
Sri Saurabh Srivastava

(A) Civil Law - Provincial Small Cause Courts
Act, 1887 - Section 25 - Revision of decrees
and orders of courts of small causes , Code of
Civil Procedure ,1908 - Order VI, Rule 17 -
Amendment of pleadings , Proviso to Order VI,
Rule 17 - no application for amendment shall
be allowed after the trial has commenced,
unless the court comes to conclusion that
inspite of due diligence, the parties could not
have raised the matter before commencement
of trial , Order VII, Rule 11 -Rejection of plaint
, Order VIII, Rule 5 - Specific denial - once the
trial has commenced the proviso to Order VI,
Rule 17 would be applicable. (Para - 15)

Plaintiff-respondent filed a suit for arrears of rent and
ejectment - default committed by defendant in
payment of rent - Defendant-revisionist contested suit
by filing written statement - in para 3 of written
statement averment made in para 2 of plaint was not
denied - stated that it was upon plaintiff to prove the
execution of the agreement - application under Order
VII, Rule 11 C.P.C. filed by defendant-revisionist -
rejected - objection filed by plaintiff-respondent -
specifically stating that after affirming of issues oral
testimony of PW-1 was recorded and was crossexamined by defendant-revisionist - application filed
under Order VI, Rule 17 after 11 years - to delay the
matter - barred by proviso to Order VI, Rule 17 as the
trial had already commenced - court below rejected
the amendment application - Hence, the present
revision.(Para - 3,4)

HELD:- If the rent was not admitted to defendant
and by mistake in the pleading it was not denied, he
had the opportunity to cross-examine the plaintiff
witnesses in regard to quantum of rent and
maintenance charges, which he failed to do so. No
288 INDIAN LAW REPORTS ALLAHABAD SERIES
interference is made out in order impugned
rejecting the amendment application of defendantrevisionist filed under Order VI, Rule 17 C.P.C.(Para
- 21,22)

Revision dismissed.(E-7)

List of Cases cited:-

1. Ishaq @ Gama Ahmad Vs Smt. Champa Devi, 2016
(117) ALR 742

2. St. of U.P. & ors. Vs Ashok Kumar & ors., 2015 (2)
AWC 1549

3. Baldeo Singh & ors. Vs Manohar Singh & anr.,
(2006) 6 SCC 498 S.

4. Malla Reddy Vs Future Builders Cooperative
Housing Society & ors., (2013) 9 SCC 349

5. Salem Advocate Bar Association, T.N. Vs U.O.I.,
(2005) 6 SCC 344

6. Baldev Singh & ors. Vs Manohar Singh & anr.,
(2006) 6 SCC 498

7. Estralla Rubber Vs Dass Estate (P) Ltd. ,(2001) 8
SCC 97

8. Ajendraprasadji N. Pandey & anr. Vs Swami
Keshavprkeshdasji N. & ors., (2006) 12 SCC 1

9. Kailash Vs Nanhku ,(2005) 4 SCC 480

10. Baldev Singh Vs Manohar Singh ,(2006) 6 SCC
498

11. Vidyabai & ors. Vs Padmalatha & anr., (2009) 2
SCC 409

12. Sushil Kumar Jain Vs Manoj Kumar & anr., (2009)
14 SCC 38

13. Panchdeo Narain Srivastava Vs K. Jyoti Sahay,
1984 Supplementary SCC 594

14. Ram Niranjan Kajaria Vs Sheo Prakash Kajaria &
ors., (2015) 10 SCC 203

15.
Revajeetu
Builders
&
Developers
Vs
Narayanaswamy & Sons, (2009) 10 SCC 84

16. Gautam Sarup [Gautam Sarup Vs Leela Jetly,
(2008) 7 SCC 85

17. Revajeetu Builders case, (2009) 10 SCC 84, SCC
p. 102

18. Nagindas Ramdas Vs Dalpatram Ichharam ,(1974)
1 SCC 242

19. Panchdeo Narain Srivastava[Panchdeo Narain
Srivastava Vs Jyoti Sahay, 1984 Supp SCC 594

(Delivered by Hon'ble Rohit Ranjan Agarwal, J.)

1. Heard Sri Rohan Gupta, learned counsel
for the revisionist and Sri Saurabh Srivastava,
learned counsel for plaintiff-respondent.

2. This revision under Section 25 of
Provincial Small Cause Courts Act, 1887 arises
out of order dated 19.10.2021 passed by
Additional District and Sessions Judge, Court
No. 7, Kanpur Nagar dismissing the amendment
application of the defendant-revisionist in S.C.C.
Suit No. 132 of 2009 under Order VI, Rule 17
C.P.C.

3. Facts in nutshell, are that plaintiffrespondent filed a suit for arrears of rent and
ejectment in the court of District Judge, Kanpur
Nagar being Suit No. 132 of 2009. It was
averred that plaintiff was the owner and landlord
of premises No. 32/17, Express Road, Kanpur
Nagar, and basement and ground floor of the
said premises was let out to defendantrevisionist at monthly rent of Rs.10,000/-, which
included Rs.5,000/- as rent and Rs.5,000/-
towards maintenance charges, since 01.08.2005.

4. As default was committed by defendant
in payment of rent, the said suit was filed.
Defendant-revisionist contested the aforesaid
suit by filing written statement on 31.07.2010,
wherein in para 3 of written statement the
averment made in para 2 of plaint was not
denied and was stated that it was upon plaintiff
11 All. Amit Gupta Vs. Gulab Chandra Kanodia
289
to prove the execution of the agreement. An
application under Order VII, Rule 11 C.P.C. was
filed
by
defendant-revisionist
which
was
rejected on 19.12.2013, thereafter, again an
application under Order VII, Rule 11 was filed
which was again rejected. The third application
filed under Order VII, Rule 11 by defendantrevisionist on 24.08.2021 was not pressed by
revisionist
on
24.09.2021.
However,
an
amendment application was filed on 30.09.2021
for amending the written statement by inserting
Para 12-A and 12-B wherein the plea was sought
to be introduced that the rent claimed at
Rs.5,000/- per month by landlord included
Rs.1,500/- as rent and rest of amount as security
charges. An objection was filed by plaintiffrespondent on 04.10.2021 specifically stating
that after affirming of issues the oral testimony
of PW-1 was recorded and was cross-examined
by defendant-revisionist. The application filed
under Order VI, Rule 17 after 11 years has been
filed to delay the matter, and the same is barred
by proviso to Order VI, Rule 17 as the trial had
already commenced. The court below after
hearing the parties on 19.10.2021 rejected the
amendment application. Hence, the present
revision.

5. Sri Rohan Gupta, learned counsel for
defendant-revisionist submitted that document
relied upon by plaintiff-respondent as rent
agreement is an unregistered document and the
amendment has been sought to clarify the
position that rent of Rs.5,000/- included the
rent and other charges including the taxes. He
next submitted that amendment was necessary
for determining the real question in controversy
and the court may allow amendment subject to
imposition of cost. Reliance has been placed
upon decision of co-ordinate Bench of this
Court in case of Ishaq @ Gama Ahmad vs.
Smt. Champa Devi, 2016 (117) ALR 742,
Para Nos. 11 and 12, which are extracted
hereasunder:-

"11. In the light of the aforesaid
principles of law laid down by the Hon'ble
Supreme Court and this Court and also looking
to the nature of the amendment of the pleadings
sought to be made in the written statement, I find
that the proposed amendment is legal in nature
which does not cause any prejudice to the
opposite party land lady. The amendment
application cannot be refused only on the
ground that the matter is old and there is a
direction of this Court to decide the case
expeditiously because the courts are expected to
do justice between the parties and not to go into
the technicalities.

12. In view of the above, the S.C.C.
Revision No.117 of 2015 deserved to be allowed
and the order dated 19.09.2015 rejecting the
amendment application of the revisionist tenant
is
set
aside.
Consequently
amendment
application Kha 61 seeking amendment of
additional written statement is allowed. The
revisionist tenant is permitted to carry out the
correction in the additional written statement
within a period of two weeks from the date of
this judgment.

6. He has relied upon a decision of this
Court in case of State of U.P. and others vs.
Ashok Kumar and others, 2015 (2) AWC
1549, Para Nos. 39, 40, 41 and 42 which are
extracted hereasunder:-

"39. Thus, it is now well settled that an
amendment of a plaint and amendment of a
written statement are not necessarily governed
by exactly the same principle. It is true that
some general principles are certainly common
to both, but the rules that the plaintiff cannot be
allowed to amend his pleadings so as to alter
materially or substitute his cause of action or
the nature of his claim has necessarily no
counterpart in the law relating to amendment of
the written statement. Adding a new ground of
defence or substituting or altering a defence
290 INDIAN LAW REPORTS ALLAHABAD SERIES
does not raise the same problem as adding,
altering or substituting a new cause of action.

40. Accordingly, in the case of
amendment of written statement, the courts are
inclined to be more liberal in allowing
amendment of the written statement than of
plaint and question of prejudice is less likely to
operate with same rigour in the former than in
the latter case. Thus, by way of amendment
alternate/inconsistent plea can be taken in the
written statement.

41. So far as argument advanced from
the side of the plaintiff-respondent that no
necessity has been shown rather there is no
pleading that why the amendment has been
sought in the written statement is concerned, a
plain and literal meaning to provisions of Order
VI Rule 17 of CPC, shows that it enables the
parties to amend a plaint or written statement
and there is no necessity to plead that
application for amendment could not be moved
in spite of due diligence. Meaning thereby,
provisions of Order VI Rule 17 of CPC does not
prohibit to amend a plaint or written statement
while
considering
the
application
for
amendment, Courts have to see whether
amendment is necessary to decide the real
controversy and no prejudice and injustice is
caused to other parties. Hence, the same has got
no force, rejected.

42. One of the argument advanced in
the matter is that by way of amendment, the
admission made by the appellant/defendant will
completely change the nature of defence taken
by the defendant in the written statement. Even
assuming that there was admission made by the
appellant in his written statement then such
admission can be explained by amendment of his
written statement even by taking inconsistent
pleas or substituting or altering his defence. As
it is well settled law that an amendment of a
plaint and amendment of a written statement are
not necessarily governed by exactly the same
principle. Additing a new ground of defence or
substituting or altering a defence does not raise
the
same
problem
as
adding
altering,
substituting a new cause of action. It is equally
well settled that in the case of an amendment of
a written statement, the Courts would be more
liberal in allowing than that of a plaint as the
question of prejudice would be far less in the
former than in the later and addition of a new
ground of defence or substituting or altering a
defence or taking on consistent pleas in the
written statement can also be allowed. (See
Baldeo Singh and others v. Manohar Singh
and another (2006) 6 SCC 498).

7. Sri Saurabh Srivastava, learned counsel
appearing for plaintiff-respondent submitted that
the sole purpose of filing the amendment
application after lapse of 11 years was only to
delay the proceedings before the court below, as
the defendant-revisionist had already on three
occasions had filed application under Order VII,
Rule 11 C.P.C. which has been rejected. He next
submitted that in para 3 of written statement
there has been no denial to the averment made in
para 2 of plaint wherein it has been specifically
stated that after the execution of agreement
between the parties the premises in question was
let out at monthly rent of Rs.10,000/- which
included Rs.5,000/- as rent and remaining
Rs.5,000/- as maintenance charges. By the
present amendment the revisionist was trying to
introduce a totally new case which was never
before the court for last 12 years. He relied upon
decision of the Apex Court in case of S. Malla
Reddy vs. Future Builders Cooperative
Housing Society and others, (2013) 9 SCC 349
Para 27, which is extracted hereasunder:-

"27.
Although
the
appellantdefendants filed the petition for striking out their
own pleading i.e. written statement, labelling the
petition as under Order 6 Rule 16 CPC, but in
substance the application was dealt with as if
under Order 6 Rule 17 CPC inasmuch as the
trial court discussed the facts of the case and did
not permit the defendants to substitute the
11 All. Amit Gupta Vs. Gulab Chandra Kanodia
291
written statement whereunder there was an
admission of the suit claim of the plaintiff
Society. The relevant portion of the order quoted
hereinabove reveals that the trial court while
rejecting the aforementioned petition held that
the appellant-defendants cannot be allowed to
substitute their earlier written statement filed in
the suit whereunder there was an admission of
the claim of the plaintiff Society (the respondent
herein). Similarly in the revision filed by the
defendants, the High Court considered all the
decisions referred by the defendants on the issue
as to whether the defendants can withdraw the
admission made in the written statement and
finally came to the conclusion that the appellantdefendants cannot be allowed to resile from the
admission made in the written statement by
taking recourse to Order 8 Rule 9 or Order 6
Rule 16 CPC by seeking to file a fresh written
statement. In the aforesaid premises, filing of a
fresh petition by the defendants under Order 6
Rule 17 CPC after about 13 years when the
hearing of the suit had already commenced and
some of the witnesses were examined, is wholly
misconceived. The High Court in the impugned
order has rightly held that filing of subsequent
application for the same relief is an abuse of the
process of the court. As noticed above, the relief
sought for by the defendants in a subsequent
petition under Order 6 Rule 17 CPC was
elaborately dealt with on the two earlier
petitions filed by the appellant-defendants under
Order 6 Rule 16 and Order 8 Rule 9 CPC and,
therefore, the subsequent petition filed by the
defendants labelling the petition under Order 6
Rule 17 CPC is wholly misconceived and was
not entertainable.

8. I have heard the rival submissions and
perused the material on record.

9. The present proceedings arises out of the
order passed by court below rejecting the
amendment application. The legislature by
amendment w.e.f. 01.07.2002 had inserted
proviso to Order VI, Rule 17 which provides
that no application for amendment shall be
allowed after the trial has commenced, unless
the court comes to conclusion that inspite of due
diligence, the parties could not have raised the
matter before commencement of trial. The said
amendment was challenged before the Apex
Court in the case of Salem Advocate Bar
Association, T.N. vs. Union of India, (2005) 6
SCC 344, wherein the Apex Court while
upholding the amending Act No. 22 of 2002
held as under:-

"26. Order 6 Rule 17 of the Code deals
with amendment of pleadings. By Amendment
Act 46 of 1999, this provision was deleted. It has
again been restored by Amendment Act 22 of
2002 but with an added proviso to prevent
application for amendment being 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. The proviso, to some
extent, curtails absolute discretion to allow
amendment at any stage. Now, if application is
filed after commencement of trial, it has to be
shown that in spite of due diligence, such
amendment could not have been sought earlier.
The object is to prevent frivolous applications
which are filed to delay the trial. There is no
illegality in the provision."

10. Thus, in the suit filed after 01.07.2002,
once the trial commences the application for
amendment cannot be allowed unless and until
the court comes to conclusion that inspite of due
diligence the parties could not have raised the
matter before commencement of trial.

11. It is not in dispute that suit for arrears
of rent and ejectment was filed in the year 2009
and written statement was filed in the year 2010.
It is admitted to defendant-revisionist that oral
statement of PW-1 was recorded on 17.09.2012.
In the cross-examination no such question was
292 INDIAN LAW REPORTS ALLAHABAD SERIES
put by defendant-revisionist as regards the rent
at
Rs.1,500/-
and
remaining
amount
as
maintenance charges or taxes. Similarly, PW-2
was cross-examined on 17.12.2012 and in the
cross-examination no such question was put to
PW-2 by defendant-revisionist and it is only
after 9 years that by way of an amendment that
an application on 30.09.2021 has been moved by
defendant-revisionist.
Once
the
defendantrevisionist had cross-examined both PW-1 and
PW-2, no question arises to introduce new fact
after 9 years when the said plea was available
with the defendant-revisionist who is the tenant
of the occupation in question. The Apex Court
while dealing with the issue of amendment of
pleading, especially the amendment of written
statement had held that such amendment can be
allowed in a written statement but once the trial
commences the same is not permitted.

12. In Baldev Singh and others vs.
Manohar Singh and another, (2006) 6 SCC
498, the Apex Court held as under:-

"9. Keeping this principle in mind, let
us now consider the provisions relating to
amendment of pleadings. Order 6 Rule 17 of the
Code of Civil Procedure deals with amendment
of pleadings which provides that 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. From a bare perusal of this provision, it
is pellucid that Order 6 Rule 17 of the Code of
Civil Procedure consists of two parts. The first
part is that the court may at any stage of the
proceedings allow either party to amend his
pleadings and the second part is that such
amendment shall be made for the purpose of
determining the real controversies raised
between the parties. Therefore, in view of the
provisions made under Order 6 Rule 17 CPC it
cannot be doubted that wide power and
unfettered discretion has been conferred on the
court to allow amendment of the pleadings to a
party in such manner and on such terms as it
appears to the court just and proper. While
dealing with the prayer for amendment, it would
also be necessary to keep in mind that the court
shall allow amendment of pleadings if it finds
that delay in disposal of suit can be avoided and
that the suit can be disposed of expeditiously. By
the Code of Civil Procedure (Amendment) Act,
2002 a proviso has been added to Order 6 Rule
17 which restricts the courts from permitting an
amendment to be allowed in the pleadings of
either of the parties, if at the time of filing an
application for amendment, the trial has already
commenced. However, the court may allow
amendment if it is satisfied that in spite of due
diligence, the party could not have raised the
matter before the commencement of trial. So far
as proviso to Order 6 Rule 17 of the Code of
Civil Procedure is concerned, we shall deal with
it later.

13. In view of this decision, it can be
said that the plea of limitation can be allowed to
be raised as an additional defence by the
appellants. Accordingly, we do not find any
reason as to why amendment of the written
statement introducing an additional plea of
limitation could not be allowed. The next
question is that if such amendment is allowed,
certain admissions made would be allowed to be
taken away which is not permissible in law. We
have already examined the statements made in
the written statement as well as the amendment
sought for in the application for amendment of
the written statement. After going through the
written statement and the application for
amendment of the written statement in depth, we
do not find any such admission of the appellants
which was sought to be withdrawn by way of
amending the written statement.

14. As noted hereinearlier, the case set
up by the plaintiff-Respondent 1 was that his
parents had no money to purchase the suit
11 All. Amit Gupta Vs. Gulab Chandra Kanodia
293
property and it was the plaintiff-Respondent 1
who paid the consideration money. In the
written statement, this fact was denied and
further it was asserted in the written statement
that the suit property was in fact purchased by
their parents and they had sufficient income of
their own. In the application for amendment of
written statement it was stated that the plaintiffRespondent 1 did not have any income to pay the
consideration money of the suit property and in
fact the parents of the plaintiff-Respondent 1 had
sufficient income to pay the sale price. It was
only pointed out in the application for
amendment that after the death of their parents,
the suit property was mutated in the joint names
of the plaintiff-Respondent 1 and the defendants
in equal shares. Therefore, the question whether
certain admissions made in the written statement
were sought to be withdrawn is concerned, we
find, as noted hereinearlier, there was no
admission in the written statement from which it
could be said that by filing an application for
amendment of the written statement, the
appellants had sought to withdraw such
admission. It is true that in the original written
statement, a statement has been made that it is
Defendant-Appellant 1 who is the owner and is
in continuous possession of the suit property, but
in our view, the powers of the court are wide
enough to permit amendment of the written
statement by incorporating an alternative plea
of ownership in the application for amendment
of the written statement. That apart, in our view,
the facts stated in the application for amendment
were in fact an elaboration of the defence case.
Accordingly, we are of the view that the High
Court as well as the trial court had erred in
rejecting the application for amendment of the
written statement on the ground that in the event
such amendment was allowed, it would take
away some admissions made by the defendantappellants in their written statement. That apart,
in Estralla Rubber v. Dass Estate (P) Ltd.
[(2001) 8 SCC 97] this Court held that even if
there were some admissions in the evidence as
well as in the written statement, it was still open
to the parties to explain the same by way of
filing an application for amendment of the
written statement. That apart, mere delay of
three years in filing the application for
amendment of the written statement could not be
a ground for rejection of the same when no
serious prejudice is shown to have been caused
to the plaintiff-Respondent 1 so as to take away
any accrued right.

17. Before we part with this order, we
may also notice that proviso to Order 6 Rule 17
CPC provides that amendment of pleadings
shall not be allowed when the trial of the suit
has already commenced. For this reason, we
have examined the records and find that, in fact,
the trial has not yet commenced. It appears from
the records that the parties have yet to file their
documentary evidence in the suit. From the
record, it also appears that the suit was not on
the verge of conclusion as found by the High
Court and the trial court. That apart,
commencement of trial as used in proviso to
Order 6 Rule 17 in the Code of Civil Procedure
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.
As noted
hereinbefore, parties are yet to file their
documents, we do not find any reason to reject
the application for amendment of the written
statement in view of proviso to Order 6 Rule 17
CPC which confers wide power and unfettered
discretion to the court to allow an amendment of
the written statement at any stage of the
proceedings."

13. In Ajendraprasadji N. Pandey and
another vs. Swami Keshavprkeshdasji N. and
others, (2006) 12 SCC 1, the Apex Court held
as under:-

"59. In the instant case, the appeal
was filed in the second round on 9-10-2002 as
could be seen from the dates and events
294 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the counter-affidavit. Special leave
petition in this Court was filed on 7-7-2004.
Additional written statement has been filed on
24-11-2005. Delay in filing the additional
written statement from 9-10-2002 to 24-112005. From 9-10-2002, the matters sought to be
introduced by the defendant by way of additional
written statement was known to the defendantappellant. The application in respect of
additional written statement does not make an
unequivocal averment as to due diligence. The
averment only reads as follows:

"Under the circumstances, the facts
which were submitted in the said appeal from
order before the High Court and the facts which
are now being submitted in the present
application could not be submitted before this
Court in spite of utmost care taken by the
defendants."

60. The above averment, in our
opinion, does not satisfy the requirement of
Order 6 Rule 17 without giving the particulars
which would satisfy the requirement of law that
the matters now sought to be introduced by the
amendment could not have been raised earlier in
spite of due diligence. As held by this Court in
Kailash v. Nanhku [(2005) 4 SCC 480] the trial
is deemed to commence when the issues are
settled and the case is set down for recording of
evidence.

61. We can also usefully refer to the
judgment of this Court in Baldev Singh v.
Manohar Singh [(2006) 6 SCC 498] for the
same proposition. A perusal of the proposed
amendment would show that it contains
numerous averments. So far as the averments in
the proposed amendments are concerned, at p.
12 of the order in para 22, the appellants admit
that all the issues raised by way of proposed
amendment in the written statement were taken
before this Court in the appeal from order filed
by the present defendants in the civil appeal
filed before this Court and again in the special
leave petition filed subsequently. As rightly
pointed out by learned Senior Counsel, any
section should not be so interpreted that part of
it becomes otiose and meaningless and very
often a proviso itself is read as a substantive
provision it has to be given full effect."

14. In Vidyabai and others vs.
Padmalatha and another, (2009) 2 SCC 409,
the Apex Court categorically held that proviso to
Order VI, Rule 17 is couched in a mandatory
form, and court's jurisdiction to allow such an
application is taken away unless the conditions
precedent therefor are satisfied. Relevant Paras
10, 11 and 19 are extracted hereasunder:-

"10. By reason of the Civil Procedure
Code (Amendment) Act, 2002 (Act 22 of 2002),
Parliament inter alia inserted a proviso to
Order 6 Rule 17 of the Code, which reads as
under:

"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."

It is couched in a mandatory form. The
court's jurisdiction to allow such an application
is taken away unless the conditions precedent
therefor are satisfied viz. it must come to a
conclusion that in spite of due diligence the
parties could not have raised the matter before
the commencement of the trial.

11. From the order passed by the
learned trial Judge, it is evident that the
respondents had not been able to fulfil the said
precondition. The question, therefore, which
arises for consideration is as to whether the trial
had commenced or not. In our opinion, it did.
The date on which the issues are framed is the
date of first hearing. Provisions of the Code of
Civil Procedure envisage taking of various steps
at different stages of the proceeding. Filing of an
affidavit in lieu of examination-in-chief of the
witness, in our opinion, would amount to
"commencement of proceeding".
11 All. Amit Gupta Vs. Gulab Chandra Kanodia
295

19. It is the primal duty of the court to
decide as to whether such an amendment is
necessary to decide the real dispute between the
parties. Only if such a condition is fulfilled, the
amendment is to be allowed. However, proviso
appended to Order 6 Rule 17 of the Code
restricts the power of the court. It puts an
embargo on exercise of its jurisdiction. The
court's jurisdiction, in a case of this nature is
limited. Thus, unless the jurisdictional fact, as
envisaged therein, is found to be existing, the
court will have no jurisdiction at all to allow the
amendment of the plaint."

15. Similarly, dealing with amendment of
written statement in Sushil Kumar Jain vs
Manoj Kumar and another, (2009) 14 SCC
38, the Apex Court held that the principle of
amendment of a plaint and a written statement
are not necessarily governed by exactly the same
principle. In a case of amendment of written
statement the courts would be liberal in allowing
than that of a plaint as the question of prejudice
would be far less but the court held that once the
trial has commenced the proviso to Order VI,
Rule 17 would be applicable.

16. The Court relied upon the earlier
decision of Apex Court in case of Panchdeo
Narain Srivastava vs. K. Jyoti Sahay, 1984
Supplementary SCC 594 wherein it was held
that admission made by a party may be
withdrawn or may be explained, but the court
was clear of the view that the benefit could not
be extended in case of commencement of trial.

17. In Ram Niranjan Kajaria vs. Sheo
Prakash Kajaria and others, (2015) 10 SCC
203, the Apex Court relying upon its earlier
judgment held as under:-

"20. On amendments generally, in the
decision reported in Revajeetu Builders and
Developers v. Narayanaswamy and Sons (2009)
10 SCC 84, after referring to Gautam Sarup
[Gautam Sarup v. Leela Jetly, (2008) 7 SCC
85], the principles on amendment have been
summarised at para 63. It has been held as
follows: (Revajeetu Builders case (2009) 10
SCC 84, SCC p. 102)

"63. On critically analysing both the
English and Indian cases, some basic principles
emerge
which
ought
to
be
taken
into
consideration while allowing or rejecting the
application for amendment:

(1) whether the amendment sought is
imperative for proper and effective adjudication
of the case;

(2)
whether
the
application
for
amendment is bona fide or mala fide;

(3) the amendment should not cause
such prejudice to the other side which cannot be
compensated adequately in terms of money;

(4) refusing amendment would in fact
lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and

(6) as a general rule, the court should
decline amendments if a fresh suit on the
amended claims would be barred by limitation
on the date of application.

These are some of the important
factors which may be kept in mind while dealing
with application filed under Order 6 Rule 17.
These are only illustrative and not exhaustive."

22. Delay in itself may not be crucial
on an application for amendment in a written
statement, be it for introduction of a new fact or
for explanation or clarification of an admission
or for taking an alternate position. It is seen that
the issues have been framed in the case before
us, only in 2009. The nature and character of
the amendment and the other circumstances as
in the instant case which we have referred to
above, are relevant while considering the delay
and its consequence on the application for
amendment. But a party cannot be permitted to
wholly withdraw the admission in the pleadings,
as held by this Court in Nagindas Ramdas v.
296 INDIAN LAW REPORTS ALLAHABAD SERIES
Dalpatram Ichharam [(1974) 1 SCC 242] . To
quote para 27: (SCC pp. 251-52)

"27. From a conspectus of the cases
cited at the Bar, the principle that emerges is,
that if at the time of the passing of the decree,
there was some material before the Court, on
the basis of which, the Court could [Ed.: The
word "could" has been emphasised in original.]
be prima facie satisfied, about the existence of a
statutory ground for eviction, it will be
presumed that the Court was so satisfied and the
decree for eviction though apparently passed on
the basis of a compromise, would be valid. Such
material may take the shape either of evidence
recorded or produced in the case, or, it may
partly or wholly be in the shape of an express or
implied admission made in the compromise
agreement, itself. Admissions, if true and clear,
are by far the best proof of the facts admitted.
Admissions in pleadings or judicial admissions,
admissible under Section 58 of the Evidence Act,
made by the parties or their agents at or before
the hearing of the case, stand on a higher
footing than evidentiary admissions. The former
class of admissions are fully binding on the
party that makes them and constitute a waiver of
proof. They by themselves can be made the
foundation of the rights of the parties. On the
other hand, evidentiary admissions which are
receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown
to be wrong." (emphasis supplied)

23. We agree with the position in
Nagindas Ramdas [(1974) 1 SCC 242] and as
endorsed in Gautam Sarup [Gautam Sarup v.
Leela Jetly, (2008) 7 SCC 85] that a categorical
admission made in the pleadings cannot be
permitted to be withdrawn by way of an
amendment. To that extent, the proposition of
law that even an admission can be withdrawn,
as
held
in
Panchdeo
Narain
Srivastava[Panchdeo Narain Srivastava v.
Jyoti Sahay, 1984 Supp SCC 594] , does not
reflect the correct legal position and it is
overruled.

24. However, the admission can be
clarified or explained by way of amendment and
the basis of admission can be attacked in
substantive proceedings. In this context, we are
also mindful of the averment in the application
for amendment that:

"11. ... Mahabir Prasad Kajaria died
at the age of 24 years on 7-5-1949 when
Defendant 5 was only 2 years and Defendant 12
was only 21 years. Till the death of Mahabir and
even thereafter, the petitioners had been getting
benefits from income of the joint properties.
Defendant 5 and his two sisters, namely, Kusum
and Bina were brought up and were maintained
from the income of the joint family properties.
The petitioners after the death of Mahabir, they
continued to live in the joint family as members
and till now as members of the joint family. In
the marriage of the two sisters of Defendant 5
Kusum and Bina (now after marriage Smt
Kusum Tulsian and Smt Bina Tulsian) the
expenses were wholly borne out from the
incomes of the joint family properties. The said
facts are well known to all the family members
and their relations."

18. Thus, position which comes out from
the above decisions of Apex Court are that after
validity of Act No. 22 of 2002 was upheld in
case of Salem Advocate Bar Association
(supra), the court has to take note of the fact that
once the trial is commenced which includes the
framing of charges, statement of witnesses,
filing of documentary evidences and hearing of
the suit that amendment in the pleadings cannot
be ordinarily allowed and only when the courts
come to conclusion that despite due diligence
the parties could not have raised the matter
before commencement of trial that such
applications can be allowed. In the present case,
it is admitted to both the parties that PW-1 was
cross-examined on 17.09.2012 while PW-2 was
cross-examined on 17.12.2012 and amendment
being sought through the application was
available to defendant-revisionist at that time but
11 All. Rahimunnisha & Anr. Vs. State of U.P. & Anr.
297
no such question was put to plaintiff witnesses 1
and 2. The application filed at the behest of
defendant-revisionist after a lapse of 9 years
from recording of statement itself is an ample
proof that it has been filed to delay the matter.

19. The S.C.C. Suit has been filed in the
year 2009 and after 12 years the application for
amendment of written statement is being sought.

20. Moreover, Order VIII, Rule 5
mandates that denial should be specific, and
every allegation of fact in the plaint if not
denied
specifically
or
by
necessary
implication, or stated to be not admitted in the
pleading of defendant shall be taken to be
admitted. There is a specific averment in Para
2 of plaint as to quantum of rent and
maintenance charges. In Para 3 of written
statement there is no denial to the said fact nor
the defendant-revisionist has stated that he is
not admitting the averment of the plaint. The
only statement made is that it is for the
plaintiff to prove the allegations made in the
said paragraphs, meaning thereby that the
averment has been admitted by defendantrevisionist.

21. If the rent was not admitted to
defendant and by mistake in the pleading it was
not denied, he had the opportunity to crossexamine the plaintiff witnesses in regard to
quantum of rent and maintenance charges, which
he failed to do so.

22.

Considering
the
facts
and
circumstances of the case, this Court finds that
no interference is made out in the order
impugned
dated
19.10.2021
rejecting
the
amendment application of defendant-revisionist
filed under Order VI, Rule 17 C.P.C.

23. Revision lacks merit and is hereby
dismissed.
----------
(2021)12ILR A297
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482/378/407 No. 2834 of 2021

Rahimunnisha & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sadhu Sharan Chaubey, Abha Srivastava, Rajesh
Kumar Singh, Salik Kr. Srivastava