V.K. Jhanji, J. - (1.) This revision petition is directed against order dated 11.11.1992 whereby in appeal, application of defendant No. 2 for amendment of written statement has been allowed.
(2.) In brief, the facts are that Central Bank of India (plaintiff) filed suit for recovery of Rs. 1,16,974/ - including interest calculated upto 7.8.1988 with pendente lite and future interest at the contractual rate against M/s Dashmesh Tractor Parts (defendant). The case of the plaintiff was that Cash Credit Limit of Rs. 50,000/ - was allowed to defendants 1 and 2 which was subsequently enhanced to Rs. 75,000/ -. Defendant No. 3 who was none else but mother of defendant No. 2 and also defendant No. 4 stood as guarantors for defendants 1 and 2 originally for the Cash Credit Limit of Rs. 50,000/ - and subsequently, for the enhanced Cash Credit Limit of Rs. 75,000/ -. Further, according to the plaintiff, defendant No. 3 executed letter of continuing guarantee on 27.3.1984 for Rs. 50,000/ - and a fresh letter of continuing guarantee for the enhanced limit in favour of the bank. Defendant No. 3 also mortgaged her property as security for the payment of the amount that may be due to the bank from defendants 1 and 2, The mortgage was equitable and was created by deposit of title -deed. Since defendants 1 and 2 did not pay the bank dues, plaintiff -bank filed suit for recovery of Rs. 1,16,974/ - against them. Defendants contested the suit on various grounds. The defence of defendant No. 3 was that she did not execute any letter of continuing guarantee and that she was made to thumb -mark on some blank forms and her son got the sale -deed from her. After evidence was led by the plaintiff -bank, the cases was fixed for evidence of defendants. Counsel for the defendants obtained a number of adjournments for producing evidence but the same was not produced. Counsel for defendant No. 3 made a statement closing the evidence of defendant No. 3. The evidence of defendants 1 and 2 was closed by order since neither they nor defendant No. 3 produced any evidence in support of their pleadings. Trial Court accordingly decreed the suit of the bank, defendant No. 3 filed first appeal before the District Judge. During the pendency of first appeal, defendant No. 3 filed an application under Order XIV rule 5, Code of Civil Procedure, for framing of additional issues but the said application was dismissed by observing that defendant No. 3 did not put herself into the witness -box nor led any evidence and in the garb of the addition issues she cannot be allowed to lead evidence. Defendant No. 3 thereafter filed an application under Order VI rule 17, Code of Civil Procedure, for amendment of the written statement, stating that guarantee -deed dated 30.5.1985 does not bear her thumb -impression and her liability stood discharged by the bank, with the plaintiff -bank having entered into enhanced cash credit limit of Rs.75,000/ -.
(3.) After hearing the counsel and going through the record, I am of the view that order under revision is not sustainable in law. Defendant No. 3 in her written statement originally filed, had denied having executed letter of guarantee dated 27.3.1984 and also letter of guarantee dated 30.5.1985. The plea now sought to be taken had already been taken by defendant No. 3 in her written statement. The learned District Judge while allowing the application though noted this fact yet allowed the amendment. As regards the plea that defendant No. 3 stood discharged from the liability incurred by her in view of enhancement of the Cash Credit Limit to Rs. 75,000/ - is a pure question of fact, and would arise only if it is proved that defendant No. 3 although executed letter of guarantee dated 27.3.1984 yet did not execute letter of guarantee dated 30.5.1985 for the enhanced cash credit limit. This plea can be argued on the facts originally pleaded in the written statement and therefore, allowing amendment of the written statement in this regard was not justified. I am further of the view that defendant No. 3 who failed to lead evidence in the trial Court, cannot be allowed to reopen the case in the garb of amendment of the written statement.;