Darshan Dashrath Bhuvad v. M/s.Maheshwari Estates Pvt. Ltd

Mr.Ditendra Mishra, Advocate for petitioner. Mr.Surendra Raja, Advocate for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April, 2009. P.C. 1 By this petition under Article 227 of the Constitution of of India, the original defendant has challenged the order below Exhibit 29 in R.A.E. Suit No.123/111 of 2005 whereunder the application for amendment to the written statement is rejected. 2 The learned Judge in the order under challenged delivered on 10th July, 2008 has observed that the proviso to Order 6 Rule 17 of the Code of Civil Procedure would not permit him to allow the amendment to the written statement. Upon perusal of application for amendment to the written statement and the replies thereto so also impugned order, I am satisfied that the amendment application is rejected under misconception that the proviso would not permit the amendment to be carried out. 3 The petitioner is defendant in the suit and she has already raised appropriate pleas denying the case of plaintiff of non user.

She wanted to elaborate the pleas by pointing out that there was on going dispute with the Bombay Electricity Supply and Transport Undertaking [B.E.S.T.] over the consumption of energy and there was temporary disconnection of the electricity supply and it was reconnected. The reconnection was after the written statement being filed. In such circumstances, she desires to place the details of dispute with the B.E.S.T. How such pleas being introduced would prevent the petitioner – defendant from amending the w.s. plaint is not clear to me. The earlier written statement does not have reference to the dispute, yet, it contains appropriate denials. The stage at which the mater is placed and having regard to the fact that no prejudice is caused to the parties by permitting amendment of this nature, the trial court should have allowed the application. The attention of the trial Court was invited to the judgment which permits amendment to the written statement.

In these circumstances, the trial court was in obvious error in rejecting amendment application so also holding that the application for amendment is time barred. All issues including merits and limitation could have been kept open and subject to the the amendment to the written statement could have been granted. 4 In the result, the writ petition succeeds and the order under challenge is set aside. The written statement shall be amended within a period of two weeks from the date of receipt of copy of this order. Petitioner shall pay the costs quantified to Rs.2,500/- to the plaintiff in the trial court. 5 It is stated that the plaintiff's evidence is over. The plaintiff has submitted his examination-in-chief by way of affidavit. The cross-examination is incomplete and at that such application was made. In these circumstances, the trial court to endeavor and dispose of the suit as expeditiously as possible and within a period of six months from the date of receipt of copy of this order. *3641-09

[S.C.DHARMADHIKARI, J]