PARVATI Vs. JAGDISH SHUKLA AND

JUDGEMENT

(1.) HEARD Smt.Anita Srivastava, the learned counsel for the petitioner and Sri N.K.Chaturvedi, the learned counsel for respondent No.1. Since the contesting respondent is before the Court, the writ petition is being decided at the admission stage itself without calling for a counter affidavit. It transpires that during the pendency of the civil appeal, an application for amendment of the plaint was moved by the appellant-plaintiff which was rejected exparte by an order dated 2.12.2008. A recall application was filed which was also rejected by an order dated 13.2.2009. The petitioner, being aggrieved, has filed the present writ petition. A perusal of the order indicates that the case was called out by the appellate court several times and that the appellant or his counsel failed to appear and accordingly the Court after perusing the contents of the amendment application rejected the application. The learned counsel for the petitioner submitted that the appellant was present and he had intimated the Court that his counsel was busy in another court and the matter may be adjourned for a short time to enable him to call his counsel, but, since the counsel did not appear, inspite of waiting, the court passed an exparte order. Considering the facts and the circumstances of the case that has been brought on record, the Court is of the opinion, that the amendment application should be decided on merit after hearing the counsel for the parties. Accordingly, the writ petition is allowed. The impugned order, dated 2.12.2008 and 13.2.2009 are quashed on payment of cost of Rs.500/-, which the petitioner shall deposit before the lower appellate court within four weeks from today. The amount so deposited can be withdrawn by respondent No.1, Sri Jagdish Shukla. The lower appellate court will fix a date and decide the amendment application on the date fixed after hearing the parties. A certified copy of this order shall be made available to the learned counsel for the parties on payment of usual charges within a week.