19.5.2010
Shri R.B. Patel, learned counsel for the petitioner/defendant.
None for the respondent.
This petition is directed against the order dated 8.1.2008 by
the Civil Judge Class I Begumganj in Civil Suit No.43-A of 2004
by which the application filed by the petitioner under Order 6 Rule
17 of the CPC was rejected.
Learned counsel for the petitioner/defendant submitted that
the proposed amendment as contained in Annexure P-5 dated
1.1.2008 in application under Order 6 Rule 17 of the CPC for
amendment in the written statement was a legal amendment though
the application was filed in later stage. He has submitted that
looking to the nature of the amendment, the trial court ought to
have allowed the application and proposed amendment may be
directed to be incorporated in the written statement. The
respondent has not filed any reply.
On a perusal of the record of the case and application in
Annexure P-5, we find that the petitioner/defendant no.4 proposed
an amendment in the written statement in paragraph 16 that the suit
land was purchased by the defendant no.4 for consideration of
Rs.25,000/- by sale deed dated 30.7.1996 and has got possession of
the land and it was in the knowledge of the plaintiffs. Therefore the
suit filed by the plaintiff was barred by limitation.
In view of the aforesaid, we are of the opinion that the
proposed amendment seems to be legal in the nature and going to
the root of the case. Though the application was filed at the later
stage but the other side may be compensate by paying cost as
petitioner/defendant made a submission that no further evidence
would be required even after allowing the application.
In view of the aforesaid, the impugned order Annexure P-1
dated 8.1.2008 is not sustainable in law in so far as it relates to
rejection of the application under Order 6 Rule 17 of the CPC for
the amendment in the written statement. The order is hereby
quashed. Application Annexure P-5 dated 1.1.2008 is hereby
allowed. Petitioner is permitted to incorporate the amendment in
the written statement. He shall be entitled to incorporate the
amendment subject to payment of cost which we would quantify to
Rs.1,000/- payable by the petitioner/defendant to the plaintiff. If
the cost is not paid, petitioner shall not be entitled for incorporating
the amendment. After allowing the application, the trial court shall
allow an opportunity to the plaintiff for amendment in the plaint or
to produce the evidence in this regard. Thereafter, the trial court
shall be free to proceed in accordance with law.
Accordingly, the writ petition stands disposed of. There shall
be no order as to costs.
C.C. as per rules.
(K.K. Lahoti) (G.S. Solanki)
JUDGE JUDGE
P/