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Dharamveer v. Prakash Kashyap - WRIT - C No. 24006 of 2006 [2006] RD-AH 16778 (25 September 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Tarun Agarwala

Heard Sri S.S. Shukla, the learned counsel for the petitioner and Sri A.C. Tewari, the learned counsel for the respondents.

The suit was decreed and the defendant filed an appeal. During the pendency of the appeal, the defendant filed an application for the amendment of the written statement under Order 6 Rule 17 and also moved an application for additional evidence under Order 1 Rule 47. Both the applications were rejected. Consequently, the writ petition.

The prayer for the amendment of the written statement was rejected on the ground that the additional facts have already been stated in the written statement, and therefore, no useful purpose would be served in allowing the amendment application.

In the opinion of the Court, the Appellate Court fell in error. Since the defendant was only trying to clarify and elucidate his points, the same ought to have been allowed by the Appellate Court in view of the fact that no additional evidence was required to be given of these points by the defendants. This Court feels that the amendment should be allowed. Consequently, the order of the Appellate Court on this aspect of the matter, is set aside. The amendment application is allowed on payment of  cost of Rs.2000/- which shall be deposited by the petitioner before the appellate court. The amount so deposited shall be withdrawn by the plaintiff and not by his counsel. The defendant- respondent shall be permitted to file his replication to the amended paragraphs within the time prescribed by the Appellate Court.

In so far as the application for additional evidence is concerned,  I find that photostat copies of the documents 23 Ga to 25 Ga were filed before the trial court which was rejected on the ground that the photostat copies were ineligible  in evidence. The original document has now been filed.

In the opinion of the Court, the Appellate Court being the last fact finding    court should have permitted the said document to be kept on the record. With regard to other documents, namely, 24 Ga to 29 Ga, no reasons had been given as to why these documents could not be placed earlier before the Court below. Consequently, in view of the provision of Order 41 Rule 27(1) (aa),  the said documents cannot be taken on record.

Consequently, the writ petition is allowed in part. The amendment application is allowed. The application for additional evidence is partly allowed. The documents 23 Ga to 25 Ga shall be taken on the record.    




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