OM PRAKASH AGRAWAL Vs. KAMLA PRASAD GUPTA

JUDGEMENT

(1.) Heard the learned counsel for the parties.

(2.) The petitioner, by way of filing this petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside order dated 18.1.2011 passed in Title Suit No. 21/2003 by the learned Sub-Judge-I, Bermo at Tenughat, whereby the prayer made on behalf of the plaintiff for allowing to amend the plaint by filing a petition dated 21.2.2009 under Order 6 Rule 17 read with section 151 C. P.C. Has been allowed.

(3.) The learned counsel for the petitioner submitted that application for amendment was submitted by the plaintiff at belated stage under the pretext of some typographical mistakes and to bring certain facts, which are necessary for determination of the real issue before the Court. It is also submitted that the issues were finalized in the year 2004 and the matter is required to be decided on the basis of issues which have been framed in the suit. However, the Court below allowed the amendment application, which is contrary to the provisions contained under Order 6 Rule 17 of the Code of Civil Procedure. It is also submitted that the written statement was filed on 9 th September 2004 and thereafter, issues have been finalized in the year 2004 and the plaintiff's evidence has been closed on 23 rd February 2007 and therefore, the interest of defendant is likely to be prejudiced as the defendant will not have an opportunity to cross-examine the plaintiff's witnesses on the additional facts brought by way of amendment petition. It is further submitted that the Title Suit has been filed by the plaintiff seeking recovery of possession and now the plaintiff is coming with a new fact, which is inconsistent with the original pleadings and, therefore, such amendment should not be allowed. However, the learned court below has not properly considered this crucial point while allowing the amendment petition. It is further submitted that the respondent-plaintiff miserably failed to indicate or justify the due diligence, as required under the proviso under Order 6 Rule 17 CPC. The learned counsel for the petitioner cited the following judgments in support of his arguments;