PRATAP Vs. GANESHRAM

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 13.9.2013 (Annexure P-1) arising out of Civil Suit No. 136-A/2012 passed by Fourth Civil Judge, Class- I, Guna, whereby the Court below has rejected the application of the petitioners/defendants under Order 6 Rule 17 C.P.C.

(2.) In a suit for declaration and restoration of possession, the defendants filed their written statements. Thereafter, the Court below framed the issues and fixed the matter for plaintiffs' evidence. Admittedly, the affidavit of examination-in-chief under Order 18 Rule 4 C.P.C. were filed by plaintiffs. At this stage, application Annexure P-4 dated 5.4.2013 was filed by the petitioners/defendants. This application was rejected on the ground that the issues were framed on 28.9.2012 and the affidavits of four persons were filed on 20.12. 2012. The Court below opined that since the trial has already commenced and the petitioner has not shown any reason for belatedly filing the amendment application, it cannot be allowed. In other words, the Court below opined that petitioner has not established 'due diligence' in filing the application after commencement of the trial.

(3.) Criticizing this order, Shri R.K.Upadhyay submits that the finding of the Court below that trial has begun is bad in law and runs contrary to the judgment of Supreme Court (Baldev Singh & Others Vs. Manohar Singh & Anr, 2006 6 SCC 498). He submits that in para 17 of this judgment, the Apex Court opined that commencement of the trial as per Order 6 Rule 17 C.P.C. cannot be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. It is contended that the trial has not begun. Reliance is also placed on the judgment of Supreme Court (Abdul Rehman & Anr. Vs. Ruldu & Others, 2012 11 SCC 341). Lastly, reliance is placed on the judgment of this Court (Pushpa Arora Versus Anita Arora, 2012 1 MPLJ 710). Written statements are also filed to bolster these contentions.