BANWARI Vs. RAJARAM

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India assails the interlocutory order dated 8.2.2013 (Annexure P -1) whereby an application under Order 6 Rule 18 CPC preferred by defendant No. 1 Banwari has been rejected. Learned counsel for rival parties are heard.

(2.) DEFENDANT No. 1 has preferred an application under Order 6 Rule 18 CPC objecting grant of further time to the plaintiff to pursue repeat application under Order 6 Rule 17 CPC preferred before the trial court despite the earlier one having been allowed by the appellate court while remanding the matter to the trial Court for reconsideration.

(3.) PER contra, the learned counsel for the respondent/plaintiff contends that by judgment and decree dated 7.9.2012 an order of remand was passed after allowing amendment sought by the plaintiff and fixing 14.9.2012 as the date for rival parties to appear before the trial court. It is contended that the matter was though listed before the trial Court on 14.9.2012 but the record was not received by the trial Court from the appellate court. On receipt of the record the case was listed for the first time before the trial Court on 19.12.2012. Moreover, it is contended that the defendant/petitioner herein did not object to the absence of the plaintiff on 14.9.2012 before the trial Court. It is lastly contended that the application for amendment under Order 6 Rule 17 CPC preferred before the trial Court has not yet been allowed. The case is yet to be heard on the said application. The trial Court has merely in the given facts and circumstances of the case where the record from the appellate court was received late, has rejected the prayer of the defendant No. 1/petitioner that the plaintiff should not be allowed from preferring and prosecuting the repeat amendment application before the trial Court due to efflux of time.