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2015 DIGILAW 3173 (ALL)

Kiran Rupauliha v. Madhubala Dwivedi

2015-10-08

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta,J. 1. The defendant-respondents no. 1 and 2 filed an application 41-Ka on 17.9.2011 seeking amendment in the written statement. In the application, it was pleaded that after the new counsel was engaged and he perused the written statement, he found certain clerical and typographical mistakes therein, which requires correction, to unable the court to decide all question in issue between the parties in an effective manner. 2. The application was opposed by the petitioners primarily on the ground that the trial has commenced and thus, the amendment could not be allowed in view of the proviso to Order 6, Rule 17 CPC substituted by U.P. Act No. 22 of 2002. Certain other objections were also taken. 3. The trial court by order dated 12 March, 2013, rejected the application seeking amendment in the written statement on the ground that the amendment sought is hit by the proviso to Order 6, Rule 17 CPC, inasmuch as, the respondents could have raised the plea before the commencement of the trial and it proves absence of due diligence on part of the defendants. 4. Aggrieved by the order of the trial court dated 12.3.2013, the defendant-respondents preferred Civil Revision No. 128 of 2013, which has been allowed by the Additional District Judge, Court 15, Allahabad, by order dated 25.8.2015. The revisional court has held that although the trial has commenced, but the amendment sought are necessary for the purpose of determining the real question in controversy between the parties. Consequently, it opined that such an amendment should generally be allowed. In this regard, reliance was placed by the revisional court on the judgment of the Supreme Court in Baldev Singh and others vs. Manohar Singh and another (2006) 6 SCC 498 . It is held that the other party can be compensated in terms of cost. Accordingly, the order of the trial court has been set aside and it has been directed to decide the amendment application afresh. 5. Learned counsel for the petitioners, impugned the order of the revisional court on the sole ground that the revisional court itself has held that the trial has commenced and thus, in his submission, the amendment sought was hit by the proviso to Order 6, Rule 17 CPC. It is urged that the trial court was justified in rejecting the amendment application. 6. It is urged that the trial court was justified in rejecting the amendment application. 6. Learned counsel for the petitioners has not challenged the finding recorded by the revisional court that the amendment sought is necessary for the purpose of determining the real question in controversy between the parties. It is well settled that while considering the application seeking amendment in the written statement, the court should be extremely liberal and unless the other side is going to suffer some irretrievable loss or injury, the amendment sought should generally be allowed. The only limitation now prescribed is by the proviso to Order 6, Rule 17 CPC which stipulates that in case where the amendment has been sought after the trial has commenced, the party seeking amendment should establish that in spite of due diligence, it could not raise the matter before the commencement of the trial. 7. It has come on record that issues were settled on 18.1.2011 and since thereafter, several dates were fixed for recording of the evidence of the plaintiffs and their witnesses. However, it is very fairly admitted by learned counsel for the petitioners that so far, the plaintiffs have not entered the witness box nor any of their witnesses have been examined. Thus, although technically the trial has commenced, but, it is apparent that the trial had not progressed at all on account of own latches on the part of the plaintiffs in examining their witnesses. 8. The Supreme Court in case of Baldev Singh and others vs. Manohar Singh and another (Supra) has held that for the purposes of the proviso to Order 6, Rule 17 CPC though the trial is deemed to have commenced, after the settlement of the issues, but the phrase has to be "understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6, Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings." 9. In such view of the matter, in the opinion of the Court, the revisional court rightly allowed the revision. 10. In such view of the matter, in the opinion of the Court, the revisional court rightly allowed the revision. 10. The petition lacks merit and is dismissed.