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Smt. Munisha Devi v. Ajab Singh - WRIT - C No. 37456 of 2006 [2006] RD-AH 11736 (18 July 2006)


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Court No. 23

Civil Misc. Writ Petition No. 37456 of 2006

Smt. Munisha Devi................................................................................Petitioner


Ajab Singh........................................................................................Respondent


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the petitioner.

Petitioner challenges the order of the appellate court whereby defendant's application under Order VI Rule 17 C.P.C. for incorporating amendment in the pleadings had been allowed on payment of cost of Rs. 800/-.

The learned counsel for the petitioner contends that the respondent made a prayer before the appellate court for incorporating amendment, making reference of two documents dated 5.7.1996 and 28.5.1997, which prayer had though earlier been allowed by the trial court also, but subsequently the order was recalled and the application was rejected because of certain latches committed by the respondent-defendant. Therefore, at the appellate stage, the same prayer could not reasonably be allowed and the grant of respondent's prayer is also basically against the spirit of proviso to Order VI Rule 17 C.P.C.

From the facts and circumstances appearing in the case it is demonstrated and also argued from the side of the petitioner that an application for such amendment of the like nature was allowed by the trial court, but still the respondent-defendant did not incorporate the amendment physically in the written statement, which latches led to the rejection of the application. It is also clear from the record that the aforesaid two documents dated 5.7.1996 and 28.5.1997 have been filed on the record of the case and they find their reference in the oral evidence of the respondent led at the trial stage. What appears to be wanting was admissibility of those documents in the absence of pleadings relating thereto in the written statement. The oral evidence so led on those documents before the trial court would also stand excluded as inadmissible in case pleadings in that reference are not there in the written statement. Therefore, keeping all these aspects in view the appellate court allowed the prayer of amendment and permitted the incorporation of such pleadings in the written statement. I do not find any infirmity in such order as to occasion an interference in extra ordinary writ jurisdiction of this Court. The proviso as appended to Order VI Rule 17 C.P.C. has been held to be only directory and not mandatory in several judgments of the Apex Court.

In the aforesaid view of the matter, I do not propose to interfere in the impugned order of the appellate court and this petition, thus, fails and is hereby dismissed.

The appellate court shall take up the disposal of the appeal expeditiously and decide it within a maximum period of three months from the date of filing a certified copy of this order before it.




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