KAMLA Vs. NAGAR MAL

JUDGEMENT

(1.) THE petitioners are aggrieved by the order dt. 28.04.2011 passed by Addl. District Judge, Churu, whereby he has dismissed the application filed by the petitioners under Order 6 Rule 17 CPC for amending their written statement. The brief facts of the case are that the respondent, Nagar Mal, filed a suit for recovery of money against the petitioner, inter -alia, on the ground that on 01.11.2007 the husband of petitioner No. 1 and father of petitioner No. 2 had taken a loan from him. In order to repay the said loan amount, he had issued a Cheque bearing No. 570565 drawn on SBBJ Bank. However, when the cheque was presented for encashment, the cheque bounced. Therefore, he tried to contact Surendra Kumar, the debtor. However, he was informed that Surendra Kumar had expired. Therefore, he sent the notices for recovery of the said amount to the petitioner. In reply to the said notice, the petitioner informed the plaintiff that in fact certain cheques had been lost for which a FIR had been lodged at Police Station, Sardarsahar. Subsequently, the plaintiff filed the Suit.

(2.) THE petitioners filed the written statement, wherein they clearly denied giving of a loan by the plaintiff to Surendra Kumar. They also denied the fact that Surendra Kumar had given any cheque to the plaintiff. However, according to the petitioner, later on, while they were going through the documents left by Surendra Kumar, they discovered a receipt signed by the plaintiff clearly showing the fact that the loan amount of Rs. 1 lakh, in fact, had been paid by Surendra Kumar to the plaintiff. Relying on this receipt, the petitioners filed an application under Order 6 Rule 17 CPC. They pleaded that they should be permitted to make the necessary amendment in the written statement and the receipt should be taken on record. However, by order dt. 28.04.2011, the learned Judge dismissed the application. Hence, this petition before this Court.

(3.) ON the other hand, Dr. Sachin Acharya, learned counsel for the respondent, has vehemently contended that the right to amend the pleadings is not an absolute right. The said right can be exercised only by a leave granted by the Court. In case the very nature of the cause of action is to be changed, then the right to amend the pleading should be denied by the Court. In order to buttress his contention, the learned counsel has relied on the case of Heeralal vs. Kalyan Mal, : AIR 1998 SC 618, and on the case of Bollepanda P. Poonacha & Anr. vs. K.M. Madapa, : (2008) 13 SCC 179. Therefore, the learned counsel has supported the impugned order.