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2009 DIGILAW 1613 (BOM)

Shri Madhukar s/o Tryambakrao Patil v. Shri Dinkar s/o Purniji Dukare

2009-11-27

VASANTI A.NAIK

body2009
JUDGMENT Rule. Rule made returnable forthwith. Petition is heard finally with the consent of learned counsel for the parties. 2] By this petition, the petitioner impugns the order passed by the Civil Judge, Junior Division, Chikhli on 21.1.2009 in R.C.S. No.124/2004 allowing the amendment application filed by the respondent no.1. The respondent no.1 is the original defendant and the petitioner is the original plaintiff. A suit was filed by the plaintiff for permanent injunction and removal of encroachment. The respondent no. 1 filed his written statement on 11.7.2005. Thereafter, the matter was posted for evidence on 21.10.2005. The petitioner tendered his evidence on affidavit on 7.11.2005. The matter was posted for cross examination of the plaintiff on 20.11.2005. Thereafter, on 1.12.2008, the respondent no.1 filed an application for permission to amend the written statement. The application was allowed by the Trial court solely on the ground that the counsel for the plaintiff was absent and the plaintiff had not filed his say to the amendment application. The order dated 21.1.2009 is impugned by the instant petition. 3] Shri Saoji, the learned counsel for th petitioner submitted that the trial court committed a serious error in allowing the amendment application after the trial had commenced, without considering whether the amendment was necessary for deciding the lis between the parties and whether inspite of due diligence the respondent no.1 could not have amended the written statement earlier or had raised the plea in the original written statement. The learned counsel for the petitioner submitted that the trial court did not consider the import of the proviso to Order 6 rule 17 of the Code of Civil Procedure. 4] Shri Pratik Puri, the learned counsel for the respondent no.1 supported the order passed by the trial court and submitted that the proposed amendment related to subsequent developments and hence it was necessary for the trial court to allow the application. Learned counsel for the respondent submitted that the plaintiff had not filed any reply to the amendment application and the counsel for the plaintiff was absent inspite of granting time and in these circumstances, the application was rightly allowed. 5] I have considered the submissions made on behalf of the parties and perused the impugned order dated 21.1.2009. The impugned order is a cryptic and nonspeaking order. 5] I have considered the submissions made on behalf of the parties and perused the impugned order dated 21.1.2009. The impugned order is a cryptic and nonspeaking order. The order does not record any reason other than the absence of the plaintiff's counsel and the non filing of the say by the plaintiff. The trial court did not consider whether the amendment was necessary for effectively deciding the lis between the parties and whether the amendment could not have been made at an earlier point of time or before the commencement of the trial, inspite of due diligence of the respondent no.1. It was necessary for the trial court to consider the import of the provisions of the proviso to order 6 rule 17 of the Code of Civil Procedure before allowing the amendment application by the order dated 21.1.2009. The order passed by the trial court on 21.1.2009 is unsustainable and is liable to be set aside. 6] For the aforesaid reasons, the writ petition is allowed. The impugned order passed by the trial court on 21.1.2009 is quashed and set aside. The matter is remanded to the trial court for deciding the amendment application fresh in accordance with law. Rule is made absolute in the aforesaid terms with no order as to costs.