Written Statement May Be Amended to Elaborate Defence After Issues but Before Evidence: Rajasthan High Court

The plaintiffs sued in the Sumerpur civil court for recovery of possession, perpetual injunction and compensation, alleging encroachment by the defendants (paras 1-2). After filing his written statement, defendant No. 1 applied on 17.03.2018 to plead that the late owner had bequeathed the property by a Will of 10.04.1988 to his daughter-in-law, who sold it to him by a registered sale deed of 19.07.2003, and that the suit was not maintainable because the plaintiffs had neither challenged those transactions nor sought a declaration of title (para 2). The plaintiffs objected that the pleas came after the issues were framed (para 2). On 21.10.2019 the trial court allowed the amendment, noting that evidence had not begun (paras 1, 2.1).

The proviso to Order VI Rule 17 restricts amendment after commencement of trial unless due diligence is shown, but it is not an inflexible bar on every amendment after issues are framed; the actual stage matters, and evidence had not begun (paras 4.1-4.2). An amendment elaborating the defence or laying the factual foundation for a legal objection cannot be refused merely because issues were framed; the test is whether it changes the substratum of the litigation (para 4.4). The property, reliefs, cause of action and jurisdiction were unchanged, and the defendant was amplifying, not replacing, his defence (paras 4.5-4.7, 5.3). A maintainability objection goes to the root of the suit and should not be shut out while the plaintiff can still meet it (para 5.1). Omprakash and Ramgopal, an election case, were distinguished; Harjeet Kaur was followed, and Laxman Singh's bar on inconsistent defences was not attracted (paras 6.2-6.11). Mere inconvenience is not prejudice, since the plaintiff can reply and lead evidence (paras 6.12-6.13). Nothing warranted interference under Article 227 (paras 7, 7.7).