ORDER
R.M.S. Khandeparkar, J.
1. The petitioner is challenging the order dated 25th March, 1991 whereby the trial Court has dismissed the application for review of the order rejecting the application for condonation of delay in incorporating the amendment in the pleadings of the plaint which was already allowed by the trial Court on payment of cost of Rs. 100/-.
2. The facts in brief which are relevant for the decision are that the petitioners/ plaintiffs filed suit against the respondents herein being R.C.S. No. 94 of 1985 for declaration that the adoption deed dated 26th July, 1982 is illegal and not binding on the plaintiffs and for their share in the suit property which they were entitled to have. Subsequently, by an application dated 8th June, 1988, the petitioners sought to amend the plaint by incorporating certain subsequent facts and consequential relief arising therefrom in favour of the petitioners. The said application though objected to, after hearing the parties was allowed by the trial Court by its order dated 22nd August, 1989.
3. In the normal course as per the provisions of law, the amendment ought to have been carried out within 14 days on payment of cost of Rs. 100/- which was awarded by the Court. However, the petitioners herein deposited the cost on 8th September, 1989 which was allowed by the trial Court by its order of the same day. Moreover on the same day, the respondents herein filed an application complaining about non-compliance of the order of grant of amendment by the petitioners and failure on the part of the petitioners to incorporate the said amendment in the pleadings within the stipulated period of limitation. The petitioners thereupon filed an application dated 4th October, 1989 requesting for extension of time to carry out the amendment in terms of the order dated 22nd August, 1989 disclosing the fact that the petitioners could not carry out the amendment within the period of limitation as she was sick. Since no medical certificate was produced along with the application, the trial Court directed the petitioner to produce the medical certificate by 21st October, 1989 and reserved its order on the said application till that date. The petitioner produced the medical certificate on 21st October, 1989. However, the trial Court dismissed the application on the same day on the ground that it did not find reasons worthwhile for allowing the
said application for extension of time. The petitioner thereupon filed an application for review of the said order. The said application was filed on 28th October, 1989. The trial Court after hearing the respondents dismissed the same by the impugned order.
4. The learned advocate appearing for the petitioners while assailing the impugned order submitted that the trial Court acted with material irregularity in dismissing the said application in as much as the trial Court did not consider the fact that the petitioner was sick for the relevant period and the same fact was duly corroborated by the medical certificate produced by the petitioner. The learned advocate for the respondents on the other hand submitted that the petitioner could not justify the delay in carrying out the amendment and in that view of the matter, no fault can be found with the impugned order.
5. Upon hearing the learned Counsel for the parties and after going through the entire materials on record, it is seen that the trial Court by its order dated 8th September, 1989 had specifically permitted the petitioner to deposit the cost awarded ,by its order dated 22nd August, 1989 and thereby had impliedly condoned the delay in implementing the order allowing the amendment by the trial Court. Further on the application dated 9th October, 1989, the trial Court had directed the petitioner to produce the medical certificate in support of the contentions of the petitioner that the petitioner was sick and could not carry out the amendment within time. Undisputedly, such an evidence in support of the application was duly produced by the petitioner within the time granted by the trial Court to the petitioner. Surprisingly, the trial Court without considering the said materials on record, rejected the application merely on the ground that the application for review under Order 47, Rule 1 was not tenable. The trial Court in these circumstances ought, to have considered that it had, in fact, condoned the delay on the part of the petitioner in complying with the order of incorporating the amendment in the pleadings within the stipulated period by allowing the petitioner to deposit the cost on 8th September 1989 and therefore there was no justification for disallowing the application of the petitioner for extension of time to carry out the amendment. Undisputedly, the amendment as such was allowed to be carried out by its order dated 22nd August, 1989 after considering the objection on merits by the respondents.
6. In this view of the matter, merely because the petitioners failed to incorporate the said pleadings in the plaint within the stipulated period, I see no reason for the trial Court to reject the prayer of the petitioners for extension of time, particularly in view of the fact that the petitioner was sick and the said fact was duly corroborated by the medical evidence produced by the petitioner. The trial Court having rejected the plea of the petitioner without even considering the medical evidence produced in support of the contention that the petitioner was sick and as such could not carry out the amendment within the prescribed period, the trial Court has acted with material irregularity while dismissing the application and in this view of the matter, the impugned order is liable to be quashed and set aside.
7. Indeed, it is unfortunate that the civil suit which was filed in the year 1985 had to remain pending for 9 years without any further progress in the matter merely on account of an order passed by the trial Court without application of its mind and only on account of mere lapse on the part of the petitioner to carry out the amendment to the plaint. Once the trial Court has found it necessary and appropriate to grant the proposed amendment to the plaint, it goes without saying that the trial Court had found it necessary to incorporate the proposed amendment in the pleadings in order to decide (he real question in controversy. Certainly the incorporation of the proposed pleadings in the plaint would assist the Court in arriving at correct and just decision in the matter. Once the trial Court in exercise of the powers under Order 6, Rule 17
of the C.P.C. had allowed the application for amendment and had permitted the party to amend the pleadings and further even condoned the delay in payment of costs which were awarded along with the grant of amendment, it was highly improper on the part of the trial Court in refusing to condone the delay in carrying out the amendment in the pleadings. The condonation of such delay could not be said to have caused any prejudice to the defendants. On the contrary the condonation of delay would have helped the Court as well as the parties in expediting the matter.
8. The impugned order is hereby quashed and set aside. The petitioner is permitted to carry out the amendment within three weeks from the date of receipt of this order by the trial Court. The trial Court to proceed with the suit as expeditiously as possible and to dispose of the same on or before December, 1999 and shall report the compliance of this direction to the Registrar of this High Court within fortnight thereof. Interim relief is vacated. Rule is made absolute in above terms with no order as to costs.
9. Application allowed.