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2015 DIGILAW 707 (ORI)

YUSUF KHANR v. SK. TOBARAK ALI

2015-12-16

B.RATH

body2015
JUDGMENT : Biswanath Rath, J. - This writ petition has been filed by the petitioner-defendant No. 1 in the suit challenging an order dated 25.04.2008 passed by the trial Court in rejecting an application under Order 6, Rule 17 read with Section 151 of C.P.C. for amendment of the written statement and also challenging the order of rejection dated 10.01.2013 on an application by the defendant No. 1 for review of the order dated 25.04.2008. 2. Short fact involved in the case is that the plaintiff filed T.S. No. 119/31 of 05/02 as against the petitioner-defendant No. 1 and the opposite party Nos.2 to 9 for decree of partition with other reliefs. The contesting defendants including the present petitioner on their appearance filed their written statement including a counter claim. 3. It is averred that during pendency of the suit, the petitioner discovered certain documents, which was in the custody of the deceased father and came to know the consequential factual position. As a result of which, the petitioner filed an application for amendment of the written statement and the amendment application was filed on 15.04.2008. 4. In response to such amendment application, the plaintiff filed an objection inter alia contending therein that by way of amendment, the defendant No. 1 wants to withdraw the earlier admissions. The defendants also failed in establishing that in spite of due diligence, the party could not have raised the proposed amendment. Further since the evidence from the side of plaintiff is already over, allowing such amendment at this stage would also create serious prejudice to the plaintiff. 5. After hearing the parties, learned trial Court vide its order dated 25.04.2008 rejected the application accepting all the three pleas raised by the plaintiff. 6. Being aggrieved by the order of rejection of the amendment application, the petitioner filed an application under Section 114 (C) and under Order 47, Rule 1 (C) of the C.P.C. for review of the order of rejection of the amendment application. This application was also seriously objected by the plaintiff. Upon hearing the rival contentions of the parties, the trial Court rejected the review application holding that the application suffered for non-availability of any legal ground in a matter of review. 7. Being aggrieved by both the above orders, the petitioner-defendant No. 1 filed the present writ petition in assailing the impugned orders. Upon hearing the rival contentions of the parties, the trial Court rejected the review application holding that the application suffered for non-availability of any legal ground in a matter of review. 7. Being aggrieved by both the above orders, the petitioner-defendant No. 1 filed the present writ petition in assailing the impugned orders. The petitioner apart from the contentions raised in the amendment application as well as in review application again reiterated that he discovered the aspect involved in the proposed amendment at a later point of time and therefore he had satisfied that despite due diligence, it was not possible on his part to bring the amendment. Petitioner further submitted that since the material brought by way of proposed amendment are relevant for just consideration of the dispute involved, he had a fair case for amendment, the Courts below on both the occasions failed to appreciate the contentions raised by the petitioner and consequently, arrived at wrong impugned orders. 8. Similarly, on his appearance, learned counsel for the opposite parties submitted that there was no satisfactory explanation in the amendment application, as the amendment had been brought at a belated stage and further submitted that since the defendants? case is that the documents were very much available in the custody of the father of the defendant No. 1, therefore, the defendant No. 1 failed in establishing the fact that in spite of due diligence, he was unaware of such developments and for which he was sufficiently prevented from bringing the proposed amendment. Learned counsel for the opposite party No. 1 further submitted that since the evidence has already been progressed, bringing such amendment at such stage is not only to frustrate the prospect of the trial already undertaken but also to linger the disposal of the suit. 9. There is no denial to the fact that the trial of the suit had already commenced but has also arrived at the stage of closure of evidence from the side of plaintiff. From the record, it is seen that not only the P.W. Nos.1 & 2 have been examined but also cross-examined. The defendant No. 1 has already produced his evidence on affidavit and the case was posted for cross examination of him. Therefore, as appears the defendant attempted to bring such amendment noting some discrepancies at the time of preparation of his evidence on affidavit. The defendant No. 1 has already produced his evidence on affidavit and the case was posted for cross examination of him. Therefore, as appears the defendant attempted to bring such amendment noting some discrepancies at the time of preparation of his evidence on affidavit. Be that as it may, since the evidence is not concluded at the stage of filing of the amendment application and in the event, there is consideration of an application for amendment, the relevant question for consideration is that whether the proposed amendment is relevant for the propose of just decision of the suit ? And if, the party in bringing amendment has satisfied the test that in spite of due diligence, he was not in a position to bring such an amendment? 10. Considering the submission of the respective parties and after perusing the impugned orders, this Court observes that the trial Court has not considered the question of relevancy of the proposed amendment for the effective adjudication of the suit. Further, since the defendant No. 1 took the specific plea that the documents were in custody of his deceased father, it is observed that the trial Court while arriving at the question of due diligence, has not at all made any endeavour to find-out, if the defendant No. 1 had satisfied that despite due diligence, he was not in a position to bring such amendment. The Hon?ble Supreme Court in considering a case in between Pankaja and Anr. v. Yellappa (D) by Lrs. And Ors. as reported in AIR 2004 SC 4102 , has come to observe as follows : "So far as the Court?s jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and latches in moving such amendment application." 11. Law is also fairly well settled that the paramount consideration in considering the amendment application is as to whether the amendment sought for is relevant for the purpose of just consideration of the suit or not. Law is also fairly well settled that the paramount consideration in considering the amendment application is as to whether the amendment sought for is relevant for the purpose of just consideration of the suit or not. Similarly, law is also fairly well settled that if there is any prejudice to the opponent by allowing an amendment even at a belated stage of the suit then the prejudice of such party can be met with cost. 12. It is in view of the above settled position of law and further in view of the observations of this Court made herein above, this Court finds the impugned orders suffer, consequently, this Court is inclined to interfere in the impugned orders dated 25.04.2008 & 10.1.2013 under Annexure-3 & 6 and while interfering in the impugned orders, this Court sets aside the same. The matter is remitted back to the trial Court for considering the amendment application at the instance of the petitioner afresh and deciding the same within a period of two months from the date of appearance of the parties after affording opportunity of hearing to the parties concerned. 13. The writ petition succeeds to the extent directed herein above. However, there shall be no order as to cost.