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2013 DIGILAW 2624 (ALL)

Shanti Devi v. Subodh Kumar

2013-10-22

RAN VIJAI SINGH

body2013
JUDGMENT Ran Vijai Singh, J. Heard Sri Rajiv Joshi, learned counsel for the revisionist and Sri Kshitij Shailendra, learned counsel for the respondents. 2. This revision has been filed against the order dated 14.5.2013 passed by the Civil Judge (Senior Division), Chandausi, Moradabad in Original Suit No. 103 of 2009 (Subodh Kumar Vs. Nathu and Another), by which the application no. 160-Ka seeking amendment in written statement of revisionist's (defendant no. 2) has been rejected. 3. On 24.9.2009, the respondent no. 2 (plaintiff) filed Original Suit No. 103 of 2009 (Subodh Kumar Vs. Nathu and Another) for partition of the house situated at Mohalla: Sambhal Gate, Chandausi, Moradabad claiming 2/3 share in the said property. The revisionist (defendant no. 2) filed a written statement on 28.11.2011 along with counter-claim denying the entire allegations as set up in the plaint. The evidence of the parties in the suit was closed on 29.3.2013. Thereafter, an amendment application no. 160 - Ka was filed on 30.4.2013 at the final hearing stage, on the ground that during the preparation of the case for final hearing, it transpired that there is a typographical mistake in the written statement. It is also stated that the revisionist is an old lady and she does not understand the implication of law. 4. The plaintiff filed his objection no. 162-C to this application stating therein that the amendment application has been filed with a view to delay the proceedings, with the further averment that another amendment application no. 156-Ka, almost on the same facts, was filed on 25.4.2013 by the revisionist, to which objection no. 159-C has been filed and that amendment application is still pending. It has also been stated that apart from the present amendment application, three other amendment application nos. 100-Ka, 104-Ka and 140-Ga have been filed, in which application no. 140-Ga is of the present applicant (the revisionist). It is also stated that by amending the written statement, the applicant - revisionist wants to take back the stand which had earlier been admitted by her. It is also stated that all the facts were existing since prior to the filing of the present amendment application and the same were in the notice of the applicant. It is further stated that the amendment has been sought on mala fide grounds and the applicant wants to convert the written statement in the counter-claim. 5. It is also stated that all the facts were existing since prior to the filing of the present amendment application and the same were in the notice of the applicant. It is further stated that the amendment has been sought on mala fide grounds and the applicant wants to convert the written statement in the counter-claim. 5. The court below, considering the submissions of the parties and taking note of the Proviso to Order VI, Rule 17 of the Civil Procedure Code, 1908 (in short, 'CPC'), rejected the amendment application on the ground that the evidence of the parties has already been closed and 29.3.2013 is fixed for final hearing. Further, in the application it is stated that in the month of October, 2001, the revisionist came to know about the same after receipt of the plaint. The court below has noted that according to own case of the revisionist, she came to know the entire facts in October, 2011, but has filed the amendment application on 30.4.2013 without explaining as to why, in between October, 2011 to 30.4.2013, amendment could not be sought. 6. Sri Rajiv Joshi, learned counsel for the revisionist contended that earlier, amendment application no. 156-Ka was not pressed by the revisionist (defendant no. 2) and so far as the present application is concerned, the reason for not moving the same has been recorded in the amendment application. In his submissions, the court below has erred in rejecting the application of the revisionist without application of mind as he did not take note of the contents of the amendment application. In his further submissions, the amendment can be allowed even at the belated stage. In support of his submissions, he has placed reliance upon the judgment of the Apex Court in Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale and Others ( 2007 (6) SCC 737 ). 7. Refuting the submissions of learned counsel for the revisionist, Sri Kshitj Shailendra, learned counsel for the respondent contended that the revisionist has not disclosed the entire facts before this Court. In his submissions, prior to the filing of the present application, almost on the same set of facts, the revisionist (defendant no. 2) filed amendment application no. 140-Ka, which was allowed on 20.2.2013 on payment of Rs. 150/- as cost. In his submissions, prior to the filing of the present application, almost on the same set of facts, the revisionist (defendant no. 2) filed amendment application no. 140-Ka, which was allowed on 20.2.2013 on payment of Rs. 150/- as cost. In his submissions, at that time, he could seek the amendment which has been sought through present amendment application, but no reason has been assigned for not amending the written statement at that time. 8. I have heard learned counsel for the parties and perused the impugned order. 9. It is not in dispute that the evidence in the case has already been closed and the case is at the final hearing stage. The present amendment application was filed on 30.4.2013, whereas prior to this, amendment application no. 140-C was allowed on 20.2.2013. From the perusal of the order dated 20.2.2013, it transpires that the earlier amendment was also sought on the ground of typographical mistake in the written statement which was noted by the counsel during the course of preparation of the case for final hearing. Surprisingly, on the same ground, the present amendment application has also been filed by stating that during the course of preparation of the case for hearing, certain typographical mistakes transpired and that is why, the amendment application is being filed. It appears, the counsel appearing in the case on behalf of the revisionist has taken it for granted that whenever he will file an amendment application on this ground, that will be allowed. 10. Proviso to Order VI, Rule 17 of the CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial. Learned counsel for the revisionist has placed reliance upon the judgment of the Apex Court in the case of Ramchandra Sakharam Mahajan (supra), wherein the Hon'ble Apex Court has observed in paragraph 14 that in absence of bona fides for not amending the pleadings within time, the Court should not reject the amendment, if that is material for deciding the controversy. 11. 11. Here in the present case, from the perusal of the contents of the application, it cannot be doubted that there was a lack of due diligence on the part of the revisionist as on the first occasion, when amendment application no. 140-C was allowed, it was filed with the averments that typographical mistake transpired during the course of the preparation of the case for final hearing. In the present amendment application no. 160-Ka, the same ground has been stated. It reflects the careless approach of the lawyer appearing in the case before the court below, but if the lack of bona fide and due diligence is treated to be cured, even then, there is nothing indicate that the order passed on the amendment application is vitiated. 12. In view of the foregoing discussions, I do not find any error in the impugned order dated 14.5.2013 passed by the learned Civil Judge (Senior Division), Chandausi, Moradabad. The revision is dismissed. However, it is observed that if any thing turns on this, the revisionist shall be at liberty to raise this point in the subsequent proceedings, if any.