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2015 DIGILAW 664 (RAJ)

Birbal v. Ashok Kumar Daga

2015-03-20

ARUN BHANSALI

body2015
JUDGMENT 1. - Heard Learned Counsel for the Parties. 2. This Writ Petition is directed against the Order dated 25.1.2014 passed by the Trial Court, whereby the application filed by the petitioner under Order 6, Rule 17 C.P.C. has been rejected. 3. The Trial Court after hearing the parties came to the conclusion that the suit was filed on 15.1.2015 written statement was filed on 12.7.2005, where after one application under Order 6, Rule 17 C.P.C. was filed by the petitioner defendant, which was accepted by the court on 26.10.2006 issues were framed in the year 2007, evidence of the plaintiff has already been closed, the amendment in the written statement was being sought with much delay, for which there was no explanation and, consequently, dismissed the application imposing coat of Rs. 500/-. 4. Learned Counsel for the Petitioner submitted that the Trial Court was not justified in dismissing the application under Order 6, Rule 17 C.P.C. merely on the ground of delay, inasmuch as, the petitioner was only seeking to raise legal aspects in the written statement by way of amendment and, therefore, the order impugned deserves to be quashed and set aside. 5. Learned Counsel for the respondent supported the order impugned and further submitted that the petitioner has not complied with the basic requirement of proviso to Order 6, Rule 17 C.P.C., inasmuch as, not a word has been averred in the application as to what prevented the petitioner from seeking the amendment before the commencement of trial and on the count alone, the order impugned deserves to be upheld by this court. 6. I have considered the submissions made by learned Counsel for the parties and have perused the material placed on record. 7. There is substance in the arguments raised by learned counsel for the respondents that the petitioner has not complied with the jurisdictional aspect pertaining to amendment after the trial has commenced as contained in proviso to Order 6, Rule 17 C.P.C. 8. 7. There is substance in the arguments raised by learned counsel for the respondents that the petitioner has not complied with the jurisdictional aspect pertaining to amendment after the trial has commenced as contained in proviso to Order 6, Rule 17 C.P.C. 8. This Court in Champalal v. Amritlal and Anr., S.B. Civil Writ Petition No. 1670 of 2015 decided on 18.2.2015 after considering the law on the subject and based on the law laid down by Hob'ble Supreme Court observed as under: "Hon'ble Supreme Court clearly laid down that the proviso was mandatory; the jurisdiction to allow amendment is taken away unless parties could not have raised the matter before the commencement of the trial: the proviso restricts the power of the court and unless the jurisdictional fact i.e. the aspect pertaining to due diligence is found to be existing the Court will have no jurisdiction at all to allow the amendment of the plaint. It was further laid down with reference to various judgment that filing of an affidavit in lieu of examination in chief of the witness would amount to commencement of proceeding and the trial is deemed to commence when the issues are framed and the case is set down for recording of evidence. From the law laid down by Hon'ble Supreme Court in the case of Vidyabai (supra) and/ Samuel (supra), it is apparent that in the present case the trial has already commenced and, therefore, it was incumbent on the petitioner to make out a case that in spite of due diligence the matter could not be raised before the commencement of trial; as already noticed hereinbefore, not a word has been indicated in the application in this regard and, therefore', jurisdictional fact for invoking provisions of Order 6, Rule 17 C.P.C. have not been alleged in the application and, therefore, the Trial Court was justified in rejecting the application filed by the petitioner. 9. Besides the above, a look at the plea sought to be raised in the written statement by way of amendment. 9. Besides the above, a look at the plea sought to be raised in the written statement by way of amendment. It is apparent that all the pleas sought to be raised could have been raised at the initial stage itself and there apparently does not appear to any reason for the petitioner to raise the same at such a belated stage and the observations made by the Trial Court appears to be justified that the application was filed simply with a view to delay the proceedings. 10. In view of the above, there is no substance in the Writ Petition, the same is, therefore, dismissed with cost of Rs. 2,000/- to be paid by the petitioner to the respondent.Petition dismissed. *******