IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 205 of 2009
Arun Kr. Mundra ...... Petitioner
Versus
Bhola Prasad Shah ...... Respondent
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
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For the petitioner: Mr. Manjul Prasad, Sr.Advocate
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02. 27.01.2009
The present writ petition has been preferred challenging the
impugned order dated 3.1.2009, passed by the learned Sub Judge-
VII, Deoghar in T(E)S No. 12 of 2002, whereby and whereunder, he
has been pleased to disallow the amendment petition filed for
amending the written statement by him.
The main contention raised by the petitioner is that the
amended proviso under Order VI Rule 7 of the Code of Civil
Procedure will not apply. The second contention raised by the
petitioner is that it is not mandatory in nature and the third
contention is that there are certain errors on record in view of the
fact that five witnesses have already been examined.
Under Order VI Rule 17 of C.P.C. which provides for
amendment of pleadings an amendment was brought about by
adding a proviso with effect from 01.07.2002 and the same is
quoted as under:-
“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.”
It will be evident on reading the proviso that no application
for amendment shall be allowed after the trial has commenced with
the sole exception that in spite of due diligence the party could not
have raised the matter before the commencement of trial. There is
neither any pleading nor any application to that effect and even in
the impugned order under challenge a finding has been specifically
recorded that the entire exercise is dilatory in nature for causing
delay. It has further been recorded that even earlier opportunities
2.
were given, as recorded by the Court below, but he failed to
produce any evidence. It has also been recorded that pursuant to
the order passed by this Court the hearing is continuing on day to
day basis.
It will be evident on the aforesaid facts and the findings that
the petitioner was not diligent and the trial has actually
commenced and is at an advanced stage. Even the petitioner
himself admits that five witnesses have already been examined
from his side.
Considering the aforesaid facts and circumstances of the
case, this writ petition is hereby dismissed but without any order
as to costs.
(Ajit Kumar Sinha, J.)
A.K.Verma/NKC