SHASHI MAHANA Vs. SAVITA GODAL AND OTHER

JUDGEMENT

(1.) Petitioner has filed this writ petition under Article 227 of the Constitution of India being aggrieved by order dtd. 22/11/2016 passed by the Court of Fourth Civil Judge ClassII, Shivpuri, whereby the application under Order 6 rule 17 of the Code of Civil Procedure (for short "CPC") has been partly allowed and partly disallowed.

(2.) It is petitioner's contention that he had originally filed a suit for declaration, partition and permanent injunction and had moved an application after receiving the written statement for converting the suit into a suit for partition and all the pleadings in regard to partition have been negated by the trial Court. Therefore, the impugned order suffers from infirmity to the extent that the pleadings in regard to partition have been denied by the trial Court.

(3.) Learned counsel for the petitioner has placed reliance on a copy of the judgment of the Hon'ble Supreme Court in the case of Abdul Rehman v. Mohd. Ruldu, as reported in 2012 (III) MPWN 104, wherein the Hon'ble Supreme Court has held that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. In para 8, the Hon'ble Supreme Court has held that the original provision was deleted by the Amendment Act 46 of 1999, however, it has been again restored by Amendment Act 22 of 2002, but with an added proviso to prevent application for amendment being 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 trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. However, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.