JUDGMENT
Usha Mehra, J.
1. By this application the defendant wants to amend his written statement. He wants to insert the fact that one Shri S.G. Ghosh of M/s W.S.Atkin & Company, representative of the plaintiff visited the factory premises of the defendants at Bombay and inspected a 15 ton crane. After making a detailed inspection and testing the same, Mr. Ghosh for and on behalf of the plaintiff signed the inspection report certifying that the performance of the crane found satisfactory in all respects.
2. It was alleged in the plaint that the plaintiff placed order for two cranes to be supplied by the defendants. On account of the default of the defendant in supplying the said cranes, this suit for specific performance was filed with alternative prayers either the two cranes be supplied or a decree for the amount deposited by the plaintiff with the defendants together with interest and damages be paid. In para 15-A of the plaint, it has been specifically pleaded that the plaintiff deputed its Planning Engineering and Management Consultants to inspect the cranes. The said representative visited the factory premises of the defendant at Bombay. They found several defects in the cranes. In the written statement, these averments have been denied by the defendants. However, when the evidence of the plaintiff was being recorded it transpired that the plaintiff would not be examining his witness Mr. S.G. Ghosh. Mr. Ghosh was cited as one such witness from whom the plaintiff wanted to prove the documents, paper and file in that connection. But the said witness the plaintiff gave up. Hence deprived the defendant to confront the certificate to Mr. Ghosh and prove that cranes were not defective. The Managing Director of the plaintiff when confronted the signatures of Shri S.G. Ghosh on the report dated 31st July,1974, he denied the same. To prove this document is very essential for the defense of the defendant. The defendant had moved an application earlier for placing the said report on record as its their document. The production of the said inspection report dated 31st July, 1974 signed by Shri S.G. Ghosh was declined by this Court vide order dated 20th December, 1982 on the ground that the document was a private document and not so pleaded in the written statement. It is in these circumstances that it has become necessary to amend the written statement and to incorporate the facts stated herein above.
3. This application has been contested by the plaintiff, inter alia, on the ground that since the Court after hearing the parties at length passed a detailed order on 20th December, 1982 thereby disallowing the defendants to place on record the said document, and now this amendment he wants to circumvent the said order. Moreover, amendment sought is belated. This Court has already held that the said document i.e. the alleged report of Shri S.G. Ghosh dated 31st July, 1974 being a private document cannot be set up by way of defense. If the amendment is allowed, it will prejudice the case of the plaintiff. If this document was in the possession of the defendant then why was it not pleaded when the written statement was filed on 15th September, 1978. Now in collusion with Shri S.G. Ghosh this document has been procured, therefore, the defendant wants to fill up this lacuna after the plaintiff led his evidence.
4. I have heard the learned Counsel for the parties and perused the record. It is a well settled principal of law that so far as allowing the amendment is concerned, the courts have been quite liberal. If the amendment sought is by the defendant the Courts are more liberal in comparison to that of the plaintiff. But at the same time, we cannot be unmindful of the fact that no amendment of the written statement can be permitted by virtue of which the defendant can set up a totally new case. Only that amendment can be allowed which is explanatory in nature. Reasonable cause has to be shown for seeking amendment at such a belated stage. The evidence of the plaintiff has been concluded in the affirmative. The document for which this amendment has been sought was not allowed to be placed on record vide order dated 20th December, 1982. The perusal of the said order shows that the Court took into consideration the contentions of the parties which are even now re-agitated and after considering those contentions came to the conclusion that the emphasise by the defendants on the list of witnesses filed earlier by the plaintiff did not much come to their aid inasmuch as it was not mentioned there that the witness had given any certificate of the fitness of the crane. Further in the cross-examination of PW.l Shri Megh Kumar Jain, no question was put to him about the issue of any certificate by Shri S.G. Ghosh or that he had in fact carried out any inspection of the crane on plaintiff’s behalf. It was also observed that if the document i.e. report or certificate of Shri S.G. Ghosh was of vital nature then it should have been placed on record at first available opportunity and also pleaded in the written statement. Since the provisions of Order 13 Rule 2 were not complied with hence the placing of the document was disallowed. What the defendant now wants to do in the garb of this document is to get that very document placed on record which was disallowed after due consideration and deliberation by this Court. If the proposed amendment is allowed then that document cannot be dis-allowed to be placed on record. This, to my mind, would adversly prejudice the case of the plaintiff. It, in fact, would change the defense already set up. As observed in order dated 20th December, 1982, mere mentioning of the name of Shri S.G. Ghosh in the list of witnesses by the plaintiff does not give any cause to the defendant. Defendant was to stand or fall on his own defense and not on the basis of the list of witnesses filed by the plaintiff. Hence, the amendment cannot be allowed on this ground. In reply to para 15-A of the plaint in the written statement, the defendant specifically denied the contents of the said para in the plaint, It has further been pleaded that the averments of para 15-A were false and allegations were vague meaning thereby that the defendant denied the visiting of the representative of the plaintiff to inspect the said crane in the factory premises of the defendant at Bombay.
Having once denied the factum of inspection by the representative of the plaintiff, now the defendant cannot turn around and say that Mr. Ghosh inspected the crane in July,1974 and gave a certificate that the crane was in order. This definitely amounts to setting up a totally new case. Hence it is not permissible in law. This would amount to displacing the plaintiff completely from the admission made by the defendant in the written statement filed by him. If such an amendment is allowed, the plaintiff will be irretrievably prejudiced. He would be denied the opportunity of taking advantage of the admission of the defendant.
For the reasons stated above, this application has no merits. The same is accordingly rejected.