LAKHI SINGH Vs. CHUTO SINGH

JUDGEMENT

(1.) The petitioners, by way of filing the instant writ petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside order dated 2.7.12 passed by Civil Judge, Sr. Division-IV, Dumka in Title Suit No. 76/2004, whereby the court below rejected the application filed under Order VI Rule 17 read with Section 151 C.P.C. seeking amendment in the plaint. Heard the learned counsel for the parties and perused the impugned order as well as materials placed on record.

(2.) Learned counsel Mr. Ashish Verma appearing on behalf of the petitioners vehemently submitted that the court below has not properly appreciated the provision as contained in Order VI, Rule 17 of the Code of Civil Procedure and rejected the request made in the amendment petition. It is further submitted that in view of the settled proposition of law, the amendment application can be submitted at any stage of proceedings. It is further submitted that the amendment in question was necessary for the purpose of determination of the real controversies/issues between the parties. It is also submitted that the conducting lawyer died during the proceeding of the suit and thereafter, new lawyer was engaged by the plaintiffs-petitioners in the year 2009. The learned counsel for the petitioners further submitted that the suit is of the year 2004 and the issues were framed in the year 2008 and thereafter, the new lawyer was engaged in the year 2009. It is further submitted that certain facts were not within the knowledge of the petitioners and therefore, it could not be brought on record at the initial stage of the filing of the suit and therefore, by way of this amendment, the plaintiffs-petitioners requested the court below to permit them to introduce the facts, which are relevant for the purpose of determining the right, title and interest in the suit property. Learned counsel for the petitioners in support of his arguments referred to and relied upon the following decisions:--

(3.) As against this, the learned counsel for the respondent while opposing this petition tried to justify the order passed by the court below and submitted that the court below after careful consideration of the facts of this case, rejected the amendment application, filed by the petitioners, as it was submitted at belated stage and the nature of the suit is likely be to changed on account of such amendment. Learned counsel for the respondent in support of his submission has also referred to and relied upon the judgment reported in [Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., 2008 14 SCC 364] and submitted that the question of due diligence has been properly considered by the court below.