R.S. Chauhan, J. - (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. Mr. Rajesh Choudhary, the learned counsel for the petitioner, has vehemently contended that the scope for amendment of pleading is clearly laid down by Order 6 Rule 17 CPC. According to the said rule, an amendment may be permitted at any stage of proceeding on such terms as may be just, and if such an amendment is necessary for the purpose of determining the real questions in controversy between the parties even after the trial has commenced, the Court is empowered to permit the amendment of pleadings provided the Court is convinced that after due diligence the party could not have raised the matter before the commencement of the trial. According to the learned counsel, the suit was filed after the death of Surendra Kumar. Since the petitioner did not go through the documents left by Surendra Kumar, they were not even aware of the fact that the receipt existed. Thus, they made the plea of total denial in the written statement. However, subsequently, when they went through the papers left by the deceased, they discovered to their dismay the existence of the particular receipt. Since the existence of the receipt would have a great impact on the stand taken by the plaintiff, since it would permit the petitioners to substantially establish their defence, in order to be just to the defendants, the learned Judge infact should have permitted the amendment. By denying them the right to amend their written statement, a grave injustice has been caused. Therefore, the learned Judge has failed to exercise the power vested in him under Order 6 Rule 17 CPC.
(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.;