BAIJYA NATH SAH Vs. THE GOVT. OF BIHAR

JUDGEMENT

(1.) Heard learned counsel Mr. Neeraj Kumar appearing on behalf of the petitioner, learned counsel Mr. Amarnath Jha appearing on behalf of defendants-respondent Nos. 3 and 4 as well as learned counsel appearing on behalf of respondent Nos. 1 and 2. This application under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner against the order dated 19.7.2013 passed in Title Suit No. 144 of 2006 by the learned Subordinate Judge-III, Saharsa whereby the learned court below allowed the amendment application in the written statement.

(2.) The learned counsel Mr. Neeraj Kumar appearing on behalf of the petitioner submitted that after commencement of trial when the plaintiff has started evidence, the defendants filed the amendment application on the ground that because of typing mistake of the typist certain facts have been left and, therefore, the amendment be allowed. The learned counsel further submitted that after the proviso to Order VI Rule 17 of the Code of Civil Procedure the courts have no jurisdiction to allow amendment after commencement of trial unless the courts record a finding that after due diligence the fact was not within the knowledge of the parties seeking amendment but the learned court below without considering this proviso to Order VI Rule 17 of the Code of Civil Procedure has allowed the application for amendment in the written statement.

(3.) The learned counsel Mr. Amarnath Jha appearing on behalf of the defendants-respondent Nos. 3 and 4 submitted that since amendment sought for is clarification in nature, therefore, the court below has rightly allowed the amendment application.