JAYWANT Vs. VARSHA AND ORS.

JUDGEMENT

(1.) By this petition under article 227 of Constitution of India, the petitioner Jaywant has challenged the order dated 06/02/2014 passed by the 4th Civil Judge, Class II, Indore in Civil Suit No. 29-A/14 allowing the application filed by the defendant under Order 6 Rule 17.

(2.) Briefly stated the facts of the case are that the plaintiff had filed an application under Order 6 Rule 17 of the C.P.C. pleading that since there was to be a partition of the disputed house and the front portion should be allowed to the plaintiff independently and independent possession to be granted to the plaintiff. Trial Court, on considering the application allowed the application and hence the present petition by the defendant.

(3.) Counsel for the defendant/petitioner has vehemently urged the fact that considering the proviso to Order 6 Rule 17 of the C.P.C., the amendment should not be allowed after the trial had commenced, unless the Court came to the conclusion that in spite due diligence the party could not have raised the matter before commencement of the trial. The Counsel vehemently submitted that the application has been filed at the belated stage by the plaintiff when the issues were already framed, the plaintiff witnesses have been examined and the defendant/petitioner was leading his evidence. He urged that the issues were framed on 07/05/2010 and recording of the plaintiff evidence had started on 09/02/2011. The recording of evidence of defence witnesses had also started and cross examination was being conducted when to fill up the lacuna, the present application has been filed. The application has been duly resisted. Besides, the Counsel also stated by the said amendment, the entire nature of the suit would be changed and in the circumstances the said amendment should not be allowed.