In a suit for specific performance brought by the petitioner on 12.07.2004, evidence was being recorded when he moved an application under Order VI Rule 17, CPC seeking amendment in the plaint so as to assert that his claim was based on a written agreement instead of oral agreement of sale. The learned Civil Judge by order dated 01.01.2009 dismissed the application. Revision petition filed thereagainst was also dismissed by the learned Additional District Judge on 02.02.2009.
2. Learned counsel for the petitioner contended that the amendment sought for neither changed the character of the suit nor did it have any bearing on the subject-matter and that even at the final stage, an amendment in the pleadings could be allowed.
3. There is absolutely no cavil with the proposition tried to be canvassed by learned counsel for the petitioner. However, the fact remains that the suit was brought by the petitioner on the basis of alleged oral agreement of sale and now when the suit was at the stage of recording evidence and one witness has also been recorded on his behalf, he wanted to introduce a fact that his claim was based on a written agreement of sale. According to him, this agreement was already misplaced somewhere and was located afterwards. It may be noted that it was never his case that his claim was based on a written agreement and that the original was misplaced somewhere. His version in the application for amendment was that he be allowed to base his claim on the written agreement of sale. Such a volte face cannot be allowed to be pleaded. Earlier, when his claim was based on an oral agreement of sale, the same was duly verified on oath. Now he was taking a shift. A litigant alleging contradictory things on material questions, they say, cannot be heard. Both the Courts below rejected his application for amendment. Their orders were sound and did not call for