GULAB SINGH Vs. DAYANAND SHIKSHA SANSTHAN AND ANOTHER

JUDGEMENT

(1.) BY means of this writ petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the or­der dated 14.01.2008, passed by Addi­tional District Judge Hnd, Dehradun, in suit No. 242 of 2002, Dayanand Shiksha Sansthan Vs. Gulab Singh and another, whereby an application 93A, for amend­ment in the plaint, was allowed by said court.

(2.) HEARD learned counsel for the par­ties and perused the affidavit, counter af­fidavit and rejoinder affidavit.

(3.) PROVISO to Rule 17 of Order VI of Code of Civil Procedure, 1908, provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In the present case, it has come on the record that not only the issues had already been framed in the suit but also affidavits were filed by the plaintiffs witnesses and the cross examination was on. As such, on the face of it, the application for amend­ment, moved on behalf of the plaintiff was hit by proviso to Rule 17 of Order VI of the aforesaid Code. In this connec­tion, it is pertinent to mention here that the plaintiff had the knowledge of date of death of Prem Singh, through the written statement filed in January 2003, and the amendment application is moved only in the year 2006, as such, it cannot be said that the plaintiff acted with due diligence, as required under the aforesaid proviso.