- (1.) This writ petition is directed against order dated 2.3.07 passed by the Additional District Judge(F.T.) No.2, Bhilwara in Civil Suit No.137/04, whereby an application preferred by the defendants-respondents under Order 6 Rule 17 of the Civil Procedure Code, 1908 ( in short "CPC" hereinafter) seeking leave to amend the written statement , stands allowed .
(2.) It is contended by the learned counsel for the petitioner that the learned trial court has committed grave error of law and facts by allowing the application . It is submitted by the learned counsel that by way of amendment at such a belated stage, when the matter was fixed for rebuttal evidence, the defendants cannot be permitted to take altogether a different stand. The learned counsel submitted that the agreement on the strength of which the amendment was sought for must be in possession of the defendants-respondents and therefore, it cannot be said that inspite of due diligence , the defendants could not have raised the matter before the commencement of the trial, which is sought to be raised by way of amendment. Accordingly, it is submitted by the learned counsel that in view of the provisions of Order 6 Rule 17, as amended by the the Code of Civil Procedure (Amendment) Act, 2002( in short "the Amendment Act,2002" hereinafter) amendment sought for ought not to have been allowed by the learned trial court at such a belated stage. In support of his arguments, the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of "M/s Modi Spinning & Weaving Mills Co. Ltd. And another v. M/s. Ladha Ram & Co.", 1977 AIR(SC) 680, "Haji Mohammed Ishaq Wd. S.K. Mohammed and others v. Mohamed Iqbal and Mohamed Ali & Co.", 1978 AIR(SC) 798, and "Gautam Sarup v. Leela Jetly & Ors.", 2008 7 SCC 85.
(3.) Per contra, the learned counsel appearing on behalf of the respondents submitted that even inconsistent pleas can be raised by the defendant in the written statement although, the same may not be permissible in the case of the plaint. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of "Baldev Singh & Ors. v. Manohar Singh & Anr.", 2006 6 SCC 498. The learned counsel submitted that after due consideration of the facts and circumstances of the case, the learned trial court has arrived at the finding that the amendment sought for does not change the nature of the dispute and for the complete and effectual adjudication of the dispute, it is absolutely necessary to permit the amendment sought for,therefore, the sound judicial discretion exercised by the learned trial court should not be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of "Sadhana Lodh v. National Insurance Co. Ltd.", 2003 3 SCC 524. Replying the arguments of the learned counsel appearing on behalf of the petitioner regarding applicability of the provisions of Order 6 Rule 17 as amended by the Act of 2002, it is submitted by the learned counsel for the respondent that the written statement in the matter was filed on behalf of the defendants on 20.5.99 , therefore, the amended provisions of Order 6 Rule 17 shall not apply to the pleadings filed prior to coming into force of the Act of 2002. In this regard, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of "S.B.I. Hyderabad v. Town Municipal Council", 2007 1 DNJ 183.;