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2012 DIGILAW 244 (MP)

Ram Pal v. Babu Lal

2012-02-27

ALOK ARADHE

body2012
JUDGMENT : Shri Pushpendra Yadav, learned counsel for the petitioner. Shri Atulanand Awasthy with Ms. Mansi Agrawal, learned counsel for respondent No. 1. 2. The notice of this writ petition was issued to respondent No. 2 on 1-1 2010. However, neither the acknowledgment nor the service report has been received back. Therefore, in view of Rule 13 of Chapter 15 of the M. P. High Court Rules, 2008 the respondent No. 2 is deemed to be served. 3. With consent of the parties, the matter is heard finally. 4. In this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 8-3-2010 by which the trial Court has rejected the application for amendment of the plaint filed by the petitioner. 5. Facts giving rise to filing of the writ petition briefly stated are that the petitioner filed a suit seeking the relief of declaration with respect to his one-fifth share in the suit property. After the petitioner had adduced the evidence, an application for amendment of the plaint was filed. By the proposed amendment, the plaintiff wanted to amend the prayer clause and claimed one-third share instead of one-fifth share in the suit property. The plaintiff further wanted to clarify the averments already made in paragraphs 7 and 9 in the plaint by way of proposed amendment. The trial Court however vide impugned order dated 8-3-2010 rejected the application for amendment filed by the petitioner on the ground that the same is belated and cannot be entertained once the trial has commenced. 6. Learned counsel for the petitioner submitted that the trial Court grossly erred in rejecting the application for amendment on the ground of delay alone. The respondents in case of delay could have been compensated in terms of cost. 7. On the other hand, learned counsel for respondent No. 1 submitted that the application for amendment was highly belated and trial Court has rightly rejected the application for amendment. The order passed by the trial Court is perfectly just and legal and does not call for any interference by this Court in exercise of power under Article 227 of the Constitution of India. The order passed by the trial Court is perfectly just and legal and does not call for any interference by this Court in exercise of power under Article 227 of the Constitution of India. In support of her submission, learned counsel for respondent No. 1 has placed reliance on decision reported in Kothandam vs. Murugesan, AIR 2009 Madras (NOC) 2017 and Motilal Mahadev Sharma and others vs. Municipal Corporation of Greater Bombay, AIR 2005 Bombay 344. 8. I have considered the submissions made by learned counsel for the parties. The Supreme Court in Surender Kumar Sharma vs. Makhan Singh, (2009) 10 SCC 626 , has held that the application for amendment should not be rejected on the ground of delay, if the opposite party can be compensated in terms of cost. No doubt, there is a delay in making the application for amendment, as the same is post-trial amendment, however, the trial Court has rejected the application for amendment merely on the ground of delay. No prejudice would be caused to the respondents if the application for amendment is allowed. The respondents can be compensated in terms of the cost. Accordingly, the impugned order dated 8-3-2010 is quashed. The application for amendment filed by the petitioner is allowed. The petitioner shall deposit a sum of Rs. 3000/-by way of cost before the trial Court within a period of 15 days from today. The aforesaid amount shall be payable to respondent No. 1. 9. With the aforesaid directions, the writ petition stands disposed of. C. C. as per rules. Petition allowed.