ROHTAS Vs. NARESH KUMAR

JUDGEMENT

(1.) CHALLENGE in this writ petition is to the order dated 19.12.2011, whereby the learned Additional District Judge, Khetri dismissed the application filed by the defendants-petitioners under Order 6 Rule 17 CPC.

(2.) LEARNED counsel for the petitioners canvassed that the amendment of pleadings being procedural in nature, the same should be liberally granted. It does not put an embargo on exercise of power of appellate court. He further canvassed that if the amendment sought by the party is imperative, effective and is bonafide and not actuated with malice, the same should be allowed. The amendment sought for is not based on any of these grounds, hence in the interest of justice, amendment sought for ought to have been allowed, but the learned court below arbitrarily dismissed their application. In support of his submissions, he placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Jaswant Kaur and Another Versus Subhash Paliwal and Others reported in (2010) 2 Supreme Court Cases 124.

(3.) ADVERTING to the facts of the instant case, it is noticed that the disputed compromise was entered in another suit no. 24/1985 and on the basis of that compromise, the suit was decreed on 14.3.1986. If the petitioners-defendants were aggrieved with that compromise, they could have raised the objection in that suit only. They are found not to have taken any steps for cancellation of agreement. Hence at the appellate stage, they could not be permitted to seek an amendment in the written statement of defence filed with the trial court in suit no. 105/2004. It is further noticed that proviso appended to Order 6 Rule 17 CPC puts an embargo on exercise of the power by the court. The learned trial court is found to have decreed the suit of the plaintiff-respondents and by way of application under Order 6 Rule 17 CPC filed at the appellate stage, the defendants-petitioners intended to make amendment in the written statement of defence filed with the trial court, which could not have been permitted as the suit had already been decided and no matter was pending with the trial court. The appeal was pending for hearing final arguments. If the amendment sought for is allowed, it would result into de-novo trial. The defendants-petitioners are found to have filed the applications in order to procrastinate the execution proceedings.