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Smt. Kusum Gupta v. Sudesh Kumar - WRIT - C No. 33571 of 2003 [2005] RD-AH 7797 (19 December 2005)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 33571 of 2003

Smt. Kusum Gupta              Vs.         Sudesh Kumar

Hon'ble Vineet Saran, J

A suit no. 36 of 1988 was filed by the plaintiff-petitioner against the defendant-respondent. After 11 years, the written statement was filed by the defendant in the year 1999. Then on 17.2.2003 the petitioner filed an application under Order VI Rule 17 C.P.C. seeking amendment of his plaint. The said amendment application was rejected on 28.4.2003 by the trial court. The revision filed against the said order was also dismissed by the District Judge on 31.5.2003. Aggrieved by the aforesaid orders, the petitioner has filed this writ petition.

I have heard Sri Nitin Sharma, learned counsel appearing for the petitioner as well as Sri Vivek Chaudhary, learned counsel appearing for the respondent. With the consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

In paragraph 22 of the plaint it was provided that the petitioner was to get the sale deed executed in her favour, after completing the formalities, within one year. The amendment sought by the petitioner was that the period of one year had wrongly been mentioned because of typographical error, which should be one month. The trial court has rejected the application on the ground that the amendment having been sought after 14 years, was only  for delaying the decision of the suit. The revisional court also dismissed the same on similar grounds.

The contention of the petitioner is that the trial of the suit has yet not commenced. No issues have been framed nor any evidence has been led by the parties and as such the amendment, if allowed to be incorporated, would not cause any harm to the defendant nor would it change the nature of the suit.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view, the orders of the courts below are liable to be set aside but however, on payment of costs. It would be wrong to say that the plaintiff-petitioner has been delaying the trial and that the said amendment application has been filed only with such intention. The written statement itself was filed by the defendant after 11 years. Till date, according to the parties, issues have also yet not been framed. By way of the amendment sought, the nature of the suit does not change at all. In the facts and circumstances of the case, it cannot be said that the said application has been filed only to delay the decision of the suit, especially when the defendant has himself filed written statement after more than a decade of the filing of the suit. In such view of the matter, I am of the opinion that the amendment sought comes within the parameters of Order VI Rule 17 C.P.C., as such, the same ought to have been allowed, but on payment of costs.

Accordingly, this writ petition stands allowed. The orders dated 28.4.2003 and 31.5.2003 passed by the III Additional Civil Judge (Senior Division), Meerut and the District Judge, Meerut respectively are set aside, and the amendment application of the plaintiff stands allowed, but on payment of costs of Rs. 2500/-, which shall be paid by the plaintiff-petitioner to the defendant-respondent within six weeks from today.

It is further provided that, since the suit has been pending since 1988, the trial court shall make every endeavour to dispose of the same expeditiously, without granting any unnecessary adjournments to either of parties.




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