- (1.) THE defendant Narayan Lal S/O Asu Ji has filed the present writ petition being aggrieved by the order dtd.28.2.2013 passed by the Civil Judge (Sr. Div.) Mandal in Civil Original Suit No.116/2010 ­ Bachu Singh V/s Narayan Lal and ors. whereby the learned trial Court allowed the plaintiff's application under Order 6 Rule 17 C.P.C. allowing some amendments in the plaint while rejecting some amendments at the same time. The amendment application was allowed with costs to be paid to the defendants of Rs.500/-.
(2.) STILL aggrieved by the said order, the defendant has approached this Court by way of present writ petition under Article 227 of the Constitution of India. This Court while issuing notices in the present writ petition, stayed the operation of the impugned order dtd.28.2.2013, which interim relief is still continuing in favour of defendant.
(3.) THE learned counsel for the defendant Dr. Sachin Acharya vehemently urged relying upon the various Supreme Court decisions that the amendment under Order 6 Rule 17 C.P.C. could not be allowed by the trial court for various reasons. First that trial had already commenced with the framing of issues and plaintiff's evidence being recorded by the learned trial Court and therefore, in view of proviso to Order 6 Rule 17 C.P.C., the amendment at this stage could not be allowed. He further urged that the plaintiff had not brought to the notice of this Court the fact which he now wanted to add in the plaint for considerable period of 2 and 1/2 years in the present suit for injunction filed by the plaintiff ­ respondent. He sought to add the averments in the plaint that while the Commissioner's report was obtained in the present case by the learned trial Court on 20.5.2007, the plaintiff claimed that on the previous day on 19.5.2007, the defendants had forcibly dispossessed the plaintiff from the land in question. Dr. Sachin Acharya submitted that the suit was filed on 15.5.2007 about 5 days back and the written statement was filed by the defendants on 29.5.2007 along with the counter claim in which cancellation of patta issued in favour of plaintiff was also claimed by the defendants and the rejoinder thereto was also submitted by the plaintiff on 14.9.2007. Having not stated anything about this fact which occurred on 19.5.2007 in these subsequently filed pleadings by the plaintiff, the plaintiff could not be allowed to amend the plaint at such belated stage. He relied upon the decision of Hon'ble Supreme Court in the case of Vidya Bai and ors. V/s Padmalatha and ors. reported in (2009) 2 SCC 409 and submitted that after the trial had commenced, the Order 6 Rule 17 C.P.C. is couched in a mandatory form and therefore, the impugned order even though partly allowing the plaintiff's amendment application is required to be set aside.;