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Himachal Pradesh High Court · body

2018 DIGILAW 970 (HP)

Parmodh Kumar v. Joginder Singh

2018-05-23

AJAY MOHAN GOEL

body2018
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioners have challenged order dated 06.02.2018, passed by the Court of learned Civil Judge, Court No. II, Una, H.P. in CMA No. 242 of 2018 in Civil Suit No. 515 of 2013, vide which, an application filed by the petitioners/defendants for amendment of written statement stands dismissed by the learned Trial Court. 2. I have heard the learned counsel for the petitioners and have also gone through the records appended with the petition including the impugned order dated 06.02.2018. 3. A perusal of the impugned order demonstrates that what weighed with the learned Trial Court while dismissing the application so filed for amendment of the written statement was that issues in the case stood framed as far back as in the year 2013 and the recording of the evidence of the plaintiff was also complete on 06.05.2017. Thereafter, on two dates, no evidence was led by the defendants and on the 3rd date, an application was filed under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the written statement. Learned Trial Court further held that the only explanation given as to why the application under Order 6 Rule 17 of the Code of Civil Procedure was filed at such a belated stage was that the purported mistake which was intended to be corrected by way of proposed amendment came into the notice of the defendants only at the time of preparing for evidence. Learned Trial Court held that no cogent explanation was furnished by the defendants as to why the application could not be filed at an early stage by the defendants and further, from the suggestions which were put forth to the plaintiff’s witnesses in the course of their cross-examinations, it was difficult to accept the averments made by the applicants in the application. 4. During the course of arguments, learned counsel for the petitioners could not point out as to what was the perversity in the findings so recorded by the learned Trial Court. 5. 4. During the course of arguments, learned counsel for the petitioners could not point out as to what was the perversity in the findings so recorded by the learned Trial Court. 5. In exercise of its powers under Section 115 of the Code of Civil Procedure, this Court has to see as to whether the impugned order has been passed by a Court either in excess of jurisdiction conferred upon it or by not exercising the jurisdiction conferred upon it or by exercising jurisdiction conferred upon it but with material irregularity. 6. In my considered view, it cannot be said that the impugned order which has been passed by the learned Trial Court is without jurisdiction. Neither it is the case of the petitioners that the Trial Court has not exercised jurisdiction conferred upon it, because admittedly, the application which was so filed before it, stands adjudicated by it. Now, as far as the issue of material irregularity is concerned, in my considered view, it cannot be said that the impugned order in any manner suffers from material irregularity. 7. Order 6 Rule 17 of the Code of Civil Procedure reads as under: “Order VI, R. 17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 8. Thus, it is apparent from the statutory provisions itself that in case an amendment is to be allowed by a Court of law, then the said Court has to be satisfied that in spite of due diligence, the party could not have raised the matter earlier. 9. It is by way of a reasoned order that learned Trial Court has held that the applicants could not demonstrate that despite due diligence the proposed amendment could not be sought by them at the earliest. 9. It is by way of a reasoned order that learned Trial Court has held that the applicants could not demonstrate that despite due diligence the proposed amendment could not be sought by them at the earliest. Further, in my considered view, as the application was filed on the 3rd date when the matter was listed for recording of the evidence of defendants, filing of the said application was nothing but an abuse of the process of law as, admittedly, the defendants had failed to lead any evidence on the earlier date. Thus, filing of the application even otherwise appears to be an exercise which was undertaken just to prolong the matter. 10. Therefore, as this Court does not finds any infirmity with the impugned order dated 06.02.2018 and as there is no merit in the present petition, the same is dismissed. Miscellaneous applications, if any, also stand disposed of. No order as to costs.