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Kunwar Pal v. Chandra Pal - WRIT - C No. 9103 of 2004 [2006] RD-AH 12377 (27 July 2006)


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                                                                               Court No.38

Civil Misc. Writ Petition No.  9103 of 2004

Kunwar Pal                        versus                      Chandra Pal

Hon'ble Vineet Saran, J

Heard Sri D.K.Tripathi, learned counsel for the petitioner as well as Sri Ashish Kumar Srivastava for the respondent. Counter affidavit has been filed and despite more than two years having passed since the filing of the counter affidavit, no rejoinder affidavit has been filed. Sri Tripathi, learned counsel for the petitioner, made a statement today that the petitioner does not propose to file a rejoinder affidavit. Accordingly, with the consent of the learned counsel for the parties, this writ petition is being taken up for final disposal.

Original suit no. 652 of 1999 was filed by the Plaintiff-respondent against the Defendant-petitioner with the prayer for grant of a decree for specific performance of an agreement for sale. The petitioner had filed his written statement in the year 2000 whereafter issues were framed and evidence had been adduced by the parties. At this stage of hearing, on 23.9.2003 the petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of his written statement. The plaintiff-respondent filed his objection to the said amendment application and after hearing the parties, the trial court rejected the same. Challenging the said order the petitioner filed a revision before the District Judge, which has also been dismissed by order dated 24.12.2003. Aggrieved by the aforesaid orders the petitioner has filed this writ petition.

Having heard learned counsel for the parties and on perusal of record, in my view, the impugned orders do not call for any interference. Admittedly the amendment was sought at a belated stage when the trial had not only commenced but was at the stage of hearing. By the proposed amendment the petitioner is seeking to incorporate certain facts of which he had knowledge in the year 1994, which was six years prior to the filing of the written statement. Further by the said amendment the entire nature of the case would be changed. The impugned orders have thus rightly been passed rejecting the amendment application as the proviso to Order VI  Rule 17 C.P.C. specifically makes it clear that application for amendment shall not be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. In the present case the petitioner has not been able to make out a case that despite due diligence he could not have raised the matter before the commencement of the trial. Admittedly, the relevant fact was already known to him six years prior to the filing of the written statement and as such there is no adequate explanation for filing the amendment application at such a belated stage. The same appears to be only to delay the decision of the suit.

For the foregoing reasons, this writ petition is devoid of merits and is, accordingly, dismissed. No order as to cost.

Dt/- July 27, 2006




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