MAHENDER SINGH CHANDEL Vs. GENERAL MANAGER AND ANOTHER

JUDGEMENT

(1.) THIS revision is directed against the order dated 23.1.2013 passed by the Civil Judge (Senior Division), Hamirpur in Civil Suit No. 56/2008 whereby the application under order 6 rule 17 of the Code of Civil Procedure for amendment of written statement filed by respondents -defendants (hereinafter referred to as the "defendants" for convenience sake) has been allowed. "Key facts" necessary for the adjudication of this petition are that the petitioner -plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a Civil Suit bearing No. 56 of 2008 for mandatory injunction seeking direction to the defendants to settle the accounts and make the payment accordingly for the work executed by the plaintiff for Thana Kot -Naian Devi OFC route, section No. I and II awarded to him vide letter dated 31.5.2003. The defendants have filed written statement to the same.

(2.) THE case was fixed for hearing. The defendants moved an application under order 6 rule 17 of the Code of Civil Procedure for amendment of the written statement. The defendants wanted to raise preliminary objection by seeking amendment to the written statement on the basis of clause 46.0 of the tender. The application was allowed by the learned trial court on 23.1.2013.

(3.) IT is settled law that the provisions of order 6 rule 17 of the Code of Civil Procedure have to be applied more liberally qua the written statement vis -à -vis plaint. However, in the instant case, it was always open to the defendants to take preliminary objection on the basis of clause 46.0 of the tender in the written statement. They have waited for almost four years to move an application under order 6 rule 17 of the Code of Civil Procedure for incorporating the preliminary objection in the written statement. The defendants have not shown due diligence in approaching the court seeking amendment to the written statement. The finding was required to be given by the trial court that the defendants despite exercising due diligence could not take the preliminary objection in the written statement in the year 2008. The defendants have adopted dilatory tactics to delay the proceedings by moving an application at the stage of hearing. The application has been allowed by the trial court in a very cursory manner without due application of mind.