LAXMI PRASAD GUPTA Vs. RAM NARAYAN PRASAD

JUDGEMENT

(1.) Heard the learned counsel, Mr. Amarnath Jha appearing on behalf of the petitioner and the learned counsel, Mr. Ujjwal Kumar Sinha appearing on behalf of the respondents. This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 30.11.2011 passed by learned Sub-Judge-III, Saharsa in title suit No. 206 of 2007 whereby the learned court below has rejected the application under Order 6, Rule 17 of the C.P.C. recording a finding that there is gross negligence of the plaintiff.

(2.) The learned counsel for the petitioner submitted that only 2 witness have been examined on behalf of the plaintiff and the amendment sought for in the plaint are all typing mistakes. No new facts were introduced by the amendment but the court below applying the proviso to Order 6, Rule 17 of the C.P.C. rejected the amendment application.

(3.) On the other hand, the learned counsel appearing on behalf of the respondents submitted that the finding of the court below is to the effect that plaintiff failed to show his due diligence, therefore, the order impugned cannot be interfered with in supervisory jurisdiction. The learned counsel submitted that in view of the proviso to Order 6, Rule 17 C.P.C. the jurisdiction of the Court is restricted in allowing the amendment application after commencement of trial and in the present case, the trial has already commenced in the suit. The learned counsel relied upon Vidyabai and Ors. v. Padmalatha and Anr., 2009 AIR(SC) 1433