- (1.) Heard the learned Advocates of both the sides. This application is at the instance of the defendants and is directed against the Order No. 32 dated August 3, 2011 and Order No. 33 dated August 29, 2011 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah in Title Suit No. 318 of 2008 thereby rejecting the prayer for amendment of the written statement.
(2.) The plaintiff/opposite party No. 1 herein instituted a suit for declaration and injunction and the defendant No. 1 is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The said suit was at the stage of peremptory hearing and the evidence on behalf of the plaintiff had been closed. Thereafter, the defendants tendered evidence under Order 18 Rule 4 of the C.P.C. On August 3, 2011, the defendants filed a fresh examination-in-chief which was not proper and as such, the same was rejected with costs of Rs. 300/- fixing the next date on August 29, 2011 for examination of the D.W. 1 and payment of costs. On the next day, i.e., on August 29, 2011, the defendants filed an application under Order 6 Rule 17 of the C.P.C. praying for amendment of the written statement and that application for amendment was rejected on contest. Being aggrieved, this application has been preferred.
(3.) Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that the parties are closely related and the application for amendment of the written statement has been filed after the closer of the evidence on behalf of the plaintiff. The suit having been filed in the year 2008, the defendants are required to show that their application for amendment has been able to overcome the mischief as provided in the proviso to Order 6 Rule 17 of the C.P.C. The petitioners are required to show that in spite of due diligence, they could not file an application for amendment of the written statement at the earliest opportunity.;