Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1226 (GAU)

Dilip Gogoi v. Tirual Bortimon Tea Estates (P. ) Ltd.

2017-09-04

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. P.S. Deka, learned counsel appearing for the petitioner. Perused the order dated 24.8.2017 passed by the Lawazima Court wherefrom it is apparent that notice on the sole respondent is served duly. However, none has entered for the respondent. 2. The present petitioners are the defendant in Title Suit No. 5/07 pending in the court of learned Munsiff No. 1, Charaideu at Sonari. 3. During the pendency of the said suit the present defendants preferred an application under order 6, rule 17 of the CPC for amendment of the written statement thereby introducing certain defences which came into existence subsequent to filing of the written statement by the petitioners. 4. The said written statement was filed along with the counter-claim. At the stage of filing of the said application the suit was fixed for framing of issues. The said application was registered as Misc. (J) Case No. 8/2014 in Title Suit No. 5/2007. 5. The respondent objected to the said application thereby praying to introduce the facts subsequent to filing of the suit which includes certain orders passed in Criminal Revision and other criminal miscellaneous cases before this court. The learned court below vide order dated 19.10.2015 rejected the petition on the ground that there was lack of due diligence by not raising these matters before commencement of proceedings. However, the learned court below came to the finding that the proposed amendments had taken place after filing of the written statement and no amendment can be allowed on events taking place after initiation of the proceedings, thus, holding as such, the said application was rejected. 6. Mr. Deka submits that the court below failed to exercise the jurisdiction within the ambit of order 6, rule 17 of CPC the said application was for bringing amendment in the written statement introducing only and some defence of the petitioners as defendant in the suit. The court ought not to have rejected. Mr. Deka accordingly submits that order needs interference from this court. 7. Considered the submissions of the learned counsel. The amendment under order 6, rule 17, CPC is applicable to the amendment of the plaint and amendment of the written statement. While deciding an application for amendment of a plaint the court below is required to examine as to whether the said introduction of the amendment sought for would change the nature of the suit. The amendment under order 6, rule 17, CPC is applicable to the amendment of the plaint and amendment of the written statement. While deciding an application for amendment of a plaint the court below is required to examine as to whether the said introduction of the amendment sought for would change the nature of the suit. If the said amendment is sought for in a pre-trial stage then the court must be liberal and if the same is at the post-trial stage, the court is bound to look into the facts of due diligence in addition to the nature of the suit being changed by the said amendment. However, the same is not the amplitude while deciding an application for amendment of the written statement inasmuch as it is the defence taken by the defendants sought to be introduced in order to nullify the claim of the plaintiff. The said defence can be raised by way of amendment even at the trial stage. However, the question of due diligence will have to be considered to some extent but to a lesser degree what is applied for amendment of plaint at the trial stage. 8. From the impugned order it is apparent that the facts sought to be introduced are subsequent to the filing of the written statement and as such there is no question of dearth of due diligence on the part of the petitioner. Apparently the suit is fixed for framing of issues and the trial has not yet started. Considering the same, this court is inclined to set aside the impugned order with a direction to accept the said amendment and allow the petitioner-defendant to file their amended written statement. 9. Accordingly this revision petition stands disposed of. Interim order, if any, stands vacated.