- (1.) This is an application made on behalf of the defendants for amendment of the written statement. It is to be noted that the suit was instituted in 2013 and the written statement was filed on 23rd June, 2014. Subsequent to the filing of the written statement, the parties proceeded in the matter and completed discovery and inspection of documents. The issues were also framed by an order dated 15th September, 2017. Subsequently, witness action also started in this matter and the deposition of the first witness of the plaintiffs began on 4th July, 2018. In the said deposition, 26 questions were put to the witness.
(2.) I find that this application for amendment of the written statement has been made on 31st July, 2018, subsequent to the witness action having started. Counsels appearing on behalf of the applicants/defendants have argued that the amendments sought to be made are for the purposes of making typographical corrections and for amplification of the defence already made. Paragraphs 4 to 9 of the application specify the reasons as to why the said amendment should be allowed. Counsels have also relied on several judgments - Seth Nanak Chand Shadiram vs. Amin Chand Pyarilal reported in AIR 1970 Cal 8; Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. reported in (2006) 4 SCC 385; Baldev Singh & Ors. vs. Manohar Singh & Anr. reported in (2006) 6 SCC 498; Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. reported in (2007) 5 SCC 602; Usha Devi vs. Rijwan Ahamd reported in (2008) 3 SCC 717; State of Madhya Pradesh vs. Union of India & Anr. reported in (2011) 12 SCC 268; State of Bihar & Ors. - vs. Modern Tent House & Anr. reported in (2017) 8 SCC 567 and Raj Kumar Bhatia vs. Subhash Chander Bhatia reported in (2018) 2 SCC 87, to buttress their argument that an amendment to the written statement is the rule and not allowing the same is an exception. The applicants have argued that the proposed amendments made at paragraph 6(ee) to paragraph 6(eee) are only for the purpose of enhancement and clarification of the statements made in the original written statement.
(3.) The counsel appearing on behalf of the respondents/plaintiffs has submitted that this application is barred under the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"]. Mr. Malay Kumar Ghosh, Senior Advocate also submitted that no proper explanation whatsoever has been provided as is required under the said proviso. He submits that the averments made in the application are vague and ambiguous and do not in any manner clarify as to why these amendments could not have been raised before the commencement of trial. Mr. Ghosh further relies on Vidyabai & Ors. -v- Padmalatha & Anr. reported in (2009) 2 SCC 409, which lays down the law, stating that the proviso appended to Order VI Rule 17 of the CPC restricts the power of the Court to allow amendment of pleadings. He relies on paragraphs 19, 20 and 21 in support of his arguments. The counsel for the applicants/defendants in reply further submitted that paragraphs 6 and 7 of this application clarify the reasons as to why they were not able to carry out the amendments. According to him, they had received certain documents, which they have placed before this Court, at the time of hearing, that indicate that they came in possession of certain new material in the month of December, 2017. It is in light of these documents that these amendments to the written statement are required to be carried out.;