DASHRATH Vs. RAJU BAI

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is at the instance of the defendant in the suit challenging the order of the Trial Court, dated 24-1-2014 allowing the respondent's application for amendment of plaint under Order 6 Rule 17 of the CPC. In brief, the respondent has filed the suit for permanent injunction in which the petitioners had filed the written statement as well as the counter claim. The respondent had also filed the reply to the counterclaim. The petitioners thereafter had filed an application for amendment of the counter claim, which was rejected by the Trial Court, against which the petitioners had filed W.P. No. 4766/2012, which was allowed by this Court by order dated 5-7-2012 with certain conditions permitting the petitioners to file fresh application. The petitioners had filed the fresh application for amendment of written statement and counter claim, which was allowed by the Trial Court. At the stage of consequential amendment, the respondents had declared that they did not want to make any consequential amendment and the matter had proceeded before the Trial Court and after completion of the evidence, at the final stage the respondent had filed an application under Order 6 Rule 17 of the CPC, which has been allowed by the Trial Court by the impugned order dated 24-1-2014.

(2.) Learned Counsel appearing for the petitioners submits that the Trial Court while allowing the respondent's application for amendment, has not considered the effect of the proviso to Rule 17 of Order 6 of the CPC and had also not considered the earlier declaration by the respondents that they did not want to make any consequential amendment, and such a declaration acts as res judicata in respect of their application for consequential amendment. He has also submitted that the amendment will require fresh evidence by the parties.

(3.) As against this, learned Counsel for the respondent submits that the application for amendment was only for consequential amendment for amending the written statement filed by the petitioners in reply to the counter claim and for that amendment no further evidence is necessary.