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2017 DIGILAW 1218 (MP)

Manjoor Ahmed v. Abdul Karim Khan

2017-11-29

PRAKASH SHRIVASTAVA

body2017
ORDER 1. Heard finally with consent. 2. By this writ petition under Article 227 of the Constitution, the defendant No.3 has approached this Court challenging the order of the trial Court dated 15.3.2017 whereby the petitioner's application for amendment of the written statement under Order 6 rule 17 of the CPC has been rejected. 3. Learned counsel for petitioner submits that since the application for amendment was based upon the subsequent event, therefore, it should have been allowed by the trial Court. 4. As against this, learned counsel for respondents has supported the impugned order. 5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the trial Court has passed a detailed reasoned order while rejecting the petitioner's application for amendment of the written statement. The petitioner on the basis of the order passed by the revenue Court in the year 2013 had filed an application for amendment of the written statement on 15.3.2017. A minute perusal of the application for amendment reveals that no explanation was furnished for filing the application after such a long lapse of time. Undisputedly, the trial has commenced and the plaintiff has already been examined. The trial Court in these circumstances has rightly noted that the test of due diligence is not satisfied. That apart it is also noted by the trial Court that the suit is pending since 2008 and almost nine years have passed and the petitioner had earlier made consequential amendment in the written statement, but at that stage the plea sought to be incorporated now was not raised. It has also been noted that the suit will be finally decided on the basis of the evidence led by the parties on merit. The reasons which have been assigned by the trial Court for rejecting the petitioner's application are just and proper. 6. Counsel for petitioner has placed reliance upon the Division Bench judgment in the matter of Kamla Bai v. Preeti Raizada [ 2010(2) MPLJ 300 ], but in that case the application for amendment was made promptly within 18 days of the subsequent event, but that is not in the present case. 7. 6. Counsel for petitioner has placed reliance upon the Division Bench judgment in the matter of Kamla Bai v. Preeti Raizada [ 2010(2) MPLJ 300 ], but in that case the application for amendment was made promptly within 18 days of the subsequent event, but that is not in the present case. 7. This Court in the matter of Dashrath and another v. Raju Bai wd/o Chogalal (deceased) through LRs and another [ 2015(1) MPLJ 92 ], has considered the earlier judgment on the point and has held that the test of due diligence is required to be satisfied if the application for amendment is made after commencement of the trial. 8. Having regard to the aforesaid, I am of the opinion that the trial Court has not committed any patent illegality in rejecting the petitioner's application for amendment. 9. Even otherwise, the Supreme Court in the matter of Jai Singh and others v. Municipal Corporation of Delhi and another, reported in (2010)9 SCC 385 , while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a Court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. In view of the above, I do not find any ground to interfere in the impugned order. The writ petition is accordingly dismissed. M. A. Mansoori for petitioner; Akshat Pahadiya for respondents No.2 and 3.