AJAY RAJPAL Vs. AVINASH RAJPAL

JUDGEMENT

(1.) WE have heard the learned counsel appearing for the parties on this appeal, which is filed by the defendant No. 1 (appellant herein) being aggrieved by the order passed by the learned Single Judge in dismissing his application seeking for amendment of the written statement. The suit was instituted by the respondent No. 1. Written statement in the said suit was filed by the defendant no. 1 on 10th February, 2003. Issues in the suit were framed on 31st August, 2004 The learned Single Judge thereafter passed an order that the evidence in the suit shall be recorded by a local commissioner who was appointed. An affidavit by way of evidence was also filed by the respondent-plaintiff on 23rd october, 2004 After the aforesaid affidavit by way of evidence was filed, an application was filed by the appellant praying for amendment of his written statement. The said application was dated 25th January, 2005. The application was contested by the respondent contending, inter alia, that since the trial has commenced, no such application seeking for amendment of the written statement could be entertained at that stage. The aforesaid contention of the counsel appearing for the respondent found favour with the learned Single Judge, who passed the impugned order dismissing the application for amendment filed by the defendant No. 1 (appellant herein ).

(2.) BEING aggrieved by the said order, the present appeal is filed on which we have heard the learned counsel appearing for the parties. There is no denial of the fact that on the day when the said application seeking for amendment of the written statement was filed by the defendant No. 1, the trial had commenced, inasmuch as the plaintiff's affidavit by way of evidence was directed to be filed and was in fact filed. However, the amendment which was sought for was to the following effect:

(3.) IN the original written statement, paragraph 2 was stated thus: