- (1.) PLAINTIFF-respondent No. 1 Musaram filed a Civil Suit No. 499 of 1996 against the petitioner (who is his real brother) with a prayer for grant of permanent injunction against the petitioner (defendant) from interfering in the possession of the plaintiff respondent No. 1 ). The written statement of the petitioner- defendant was filed, issues were framed and evidence of the plaintiff was closed and a date was fixed for evidence of the defendant and the witnesses of the defendant were to be cross-examined and it was at this stage that on 28-8-2003 the plaintiff-respondent No. 1 filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of adding the relief for partition of the property in question and also for a declaration of his 3/4th share in the property in dispute. The said application of the defendant- respondent No. 1 was allowed by the trial Court on 20-9-2003. Challenging the said orders, the petitioner filed Civil Revision No. 52 of 2003 before the District Judge, Saharanpur which has been dismissed on 12-5-2004. Aggrieved by the aforesaid orders, the petitioner has filed, this writ petition.
(2.) I have heard Sri J. P. S. Chauhan, learned Counsel appearing for the petitioner as well as Sri Shashi Kant Shukla, learned Counsel appearing for the respondents. Pleadings have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at this stage. It is not disputed between the parties that the trial of the suit had commenced at the time when the application for amendment had been filed. The Courts below have allowed the amendment application primarily on the ground that "the Courts should be extremely liberal in granting the prayer for amendment" and as such when the amendment is being sought only in the prayer of the plaint, the same would not change the fundamental character of the suit, and thus the same should be allowed and was accordingly allowed by the Courts below. The submission of the learned Counsel for the petitioner is that it was only after certain material facts were disclosed in the written statement and the evidence filed by the petitioner, that the respondent No. 1 moved such application for amendment, and in case if such amendment is allowed, it could cause grave hardship to the petitioner. It has further been submitted that the said amendment application has been filed alter seven years of the filing of the suit and also after coming into force of Act No. 22 of 2002, whereby Rule 17 of Order VI of the Code of Civil Procedure has been amended, with effect from 1- 7-2002.
(3.) THE proviso to the amendment Rule 17 clearly states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. THE word used in the said proviso is "shall" and not "may" and as such it was obligatory for the Courts below to first come to the conclusion that in spite of due diligence, the plaintiff could not have filed the amendment application before the commencement of the trial. A perusal of the application seeking amendment goes to show that there is no reason whatsoever disclosed by the plaintiff for not having added such a prayer at the time of filing of the suit or having got the same amended prior to the commencement of the trial. THE purpose of the said proviso is that the trial of the suits should not be delayed and once the trial commences, it should be concluded expeditiously, unless for some specific and valid reason the amendment application is to be entertained. The submission of the learned Counsel for the petitioner has force that the situation with regard to the property remained the same at the time of filing of the suit and when the amendment application was filed, and in case if the respondent had so desired, he could have made the prayers sought by means of the amendment, at the time of filing the suit itself, and by adding it subsequently after 7 years of the filing of the suit, and after the issues had been framed and evidence was going on the interest of the petitioner-defendant shall be prejudiced.;