ORDER
V.S. Aggarwal, J.
1. A short question that comes up for consideration in the present revision petition is as to if petitioner Rajinder Kumar could add new pleas inconsistent with the written statement or not?
2. Before reverting to the said controversy, some relevant facts can conveniently be listed. Manohar Lal Khurana has filed a petition for eviction. The ground of eviction taken up was that Harish Kumar has sublet the demised property to Rajinder Kumar. The petitioner has filed written statement. It was denied that the property has been sublet. The defence taken up was that the property had been let to both the respondents in the eviction application, namely, Rajinder Kumar and Harish Kumar. The trial proceeded. During the pendency of the same, an application was filed seeking amendment of the written statement. The petitioner wanted to incorporate that in fact, the shop in dispute was taken on rent by Amir Chand to start a new business in the name and style of Satya General Store for the Joint Hindu Family. The petitioner and Manohar Lal Khurana are members of that Hindu Undivided Family. The rent was subsequently increased from Rs. 200/- per month to Rs. 450/- per month and again to Rs. 500/- per month in the year 1994. Both the them claimed that they were living with their father. It was asserted that the amendment is necessary for the just decision of the case.
3. The application as such was contested by the landlord. He denied that the property in dispute had been let to Amir Chand for business of Satya General Store. It was pointed out that when last opportunity was given for evidence, the petitioner did not produce the evidence and instead has filed the application for amendment in the written statement which would change the nature of the case.
4. The learned Rent Controller vide the impugned order held that if the amendment is allowed, it will change the nature of the defence and, therefore, it should not be so permitted to be done. The learned Rent Controller took note of the fact that sufficient opportunities to lead evidence has already been granted and the application has been filed at a belated stage. Accordingly, the application seeking amendment was dismissed.
5. Order 6 Rule 17 of the Code of Civil Procedure (for short ‘the Code”) read as under:-
“17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”
6. A bare perusal of Order 6 Rule 17 of the Code clearly shows that the amendments necessary to determine the question in controversy should be allowed. Law has always been that duty of the Court is to determine the rights of the parties and not to punish them for the mistakes, if any. Generally stating, if it is not mala fide; it does not cause injustice to other party; does not withdraw the admission made; it does not incorporate a time barred claim; and the other party can be compensated with costs, amendment can well be allowed.
7. What is the position herein? In the written statement that was filed, it was specifically alleged that the petitioner as well as Harish Kumar were joint partners in the property. It was contended that they had taken the property on rent as joint partners and now they wanted to incorporate, that, in fact, the property had been let to Amir Chand to start business in the name and style of Satya General Store and that they are members of the joint Hindu Undivided Family. Indeed, the defence so offered cannot be taken to be elucidating the same fact. Learned counsel for the petitioner tried to highlight and alleged that it is only elucidating what has been pleaded but it is not so. It is one thing to say that the property was taken on rent as joint partners and the other thing to say that it was let to their father and now they carry on the business in it being members of the Hindu Undivided Family. The difference between the two is of cheese and chalk. One cannot allow a party to take the pleas changing the nature of the defence. This is so because the other party cannot be compensated with costs.
8. Privy council in the case of Ramsaran Mandar and Ors. v. Mahabir Sahu, A.I.R. 1927 Privy Council 18, had considered a similar controversy. It was held as under:-
“Their Lordships cannot accede to these arguments. It is not permissible by amendment to change the nature of the suit as framed; and even if it were, the defendants affected by such amendment must have an opportunity to rebut such new cause of action, a course which would involve fresh written statements and a fresh trial. Their Lordships are unable to permit such a course at this stage.”
9. This Court in the case of Saraj Din v. Laxmi Bai wife of Behari Lal an another, 1975 Rent Control Reporter 532, also upheld a similar contention as put forward by the landlord. Therein, Smt. Laxmi Bai had filed an application for ejectment against Bhagwan Dass and Saraj Din. The application was contested. During the pendency of the application, Saraj Din filed an application for amendment of the written statement in which it was stated that the disputed house was non-residential house. The application was dismissed. It was held that when a new case is set up at a belated stage, amendment should not be allowed. Same was the view expressed, in the case of Dewan Chand v. Kalyan Dass and Ors., A.I.R. 1988 Punjab and Haryana 43. The facts were little different but again it was held that one cannot be allowed to take inconsistent version and set up a new defence. The defendant contested the claim that he was a tenant. In appeal, amendment in the plaint was sought to incorporate the plea that, in fact, the defendant was a licensee. The amendment was allowed by the lower Appellate Court. In revision, this Court disallowed the proposed amendment in the plaint.
10. Identical is the position herein. As already pointed out above and re-mentioned at the risk of repetition, the petitioner took up the specific plea that he is a joint tenant and now wanted to incorporate the plea that their father was the tenant and he was a member of the Hindu Undivided Family. The same was rightly not allowed at the belated stage because it was altogether a new defence. Such an amendment, if allowed, would cause irreparable injury to the respondent which could not be compensated in terms of costs.
11. For these reasons, the revision petition must fail and is accordingly dismissed.