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Lahari Prasad v. District Judge Varanasi & Another - WRIT - C No. 47028 of 2003 [2005] RD-AH 7669 (16 December 2005)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 47028 of 2003

Lahari Prasad              vs.             District Judge, Varanasi & another

Hon'ble Vineet Saran, J

Original suit no. 717 of 2001 was filed by the plaintiff-respondent no.3 against the petitioner (defendant). The petitioner filed his written statement on 19.11.2001 and admittedly the trial had already commenced. Then on 5.5.2003, the petitioner filed an application for amendment of his written statement, seeking to withdraw certain admissions made by him in his written statement filed on 19.11.2001. By an order dated 21.7.2003 passed by the trial court, the said amendment application of the petitioner was rejected. Challenging the same the petitioner filed a revision, which was also dismissed by the District Judge on 16.8.2003. Aggrieved by the aforesaid orders dated 21.7.2003 and 16.8.2003 the petitioner has filed this writ petition.

I have heard Sri Vijai Kumar Rai, learned counsel for the petitioner as well as Sri Tarun Tiwari, learned counsel appearing for contesting respondent no.3. Counter and rejoinder affidavits have been exchanged between the contesting parties and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

It is not disputed by the parties that the application seeking amendment in the written statement was filed by the defendant-petitioner after commencement of the trial. The trial court, as well as the District Judge, have rightly rejected the application after considering the amendment in the proviso to Rule 17 of Order 6 C.P.C. which makes it clear 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". The petitioner, in his application, has nowhere stated that despite due diligence, he could not file the amendment application earlier. Even in the writ petition, the same has not been explained. It is not disputed that after the amendment of the provisions of Order 6 Rule 17 C.P.C. with effect from 1.7.2002, it would be these provisions which would be applicable. As such the application of the petitioner, which had been filed after 1.7.2002, had to be examined under the amended provisions and the finding of the courts below that the same did not fall within the parameter of the amended provision as well as the rejection of the application of the petitioner by the impugned order cannot be said to be unjustified or illegal. As such no interference is called for with the orders impugned in this writ petition.

The writ petition is, accordingly, dismissed. No order as to cost.

Dt/- 16.12.2005



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