Gurudwara Bei Sehjal And Others vs Gurprakash And Others

Tarlok Singh Chauhan, J

Aggrieved by the order passed by learned Trial Court on 05.01.2019, whereby it permitted the defendants to file written statement beyond the period of 90 days after the service was effected, the petitioners have filed the instant petition.

Brief facts of the case are that the plaintiffs/petitioners instituted a suit on 03.10.2017 and the same was taken up by the learned Trial Court on 07.10.2017 and summons were ordered to be issued to the respondents/defendants for appearance on 06.11.2017. Accordingly, notices were issued and the same were received by the respondents on 25.10.2017.

Learned Trial Court took up the case on 06.11.2017, when Shri Sanjeev Sharma, Advocate, appeared on behalf of defendant No. 1 and defendants No. 2 and 3 were represented by Shri Sanjiv Kalota, Advocate, and sought time to file written statement. The case was ordered to be fixed for filing written statement on 13.12.2017. On 13.12.2017, the defendants/respondents again sought time to file written statement.

Again, when the matter was listed on 23.01.2018, the time prayed for filing written statement was allowed and the case was ordered to be listed on 13.03.2018. On 13.03.2018, an application for extension of time for filing written statement came to be filed on behalf of defendant/respondent No. 1 Guruprakash before the learned Trial Court but the same was not supported by affidavit.

It was specifically mentioned in the application that the applicant/respondent/defendant No.1 requires old revenue records which was lying in different offices, without even substantiating what the same are, the learned Trial Court acceded to the request by passing following order on 13.03.2018:-

“13.03.2018 Present: Shri Dinesh Vashisht, Adv. For plaintiff.

Sh. Sanjiv Kalota, Adv. For defendants.

Application u/s 148 PC for enlargment of time for filing written statement filed. Considered & allowed. Put up for written statement now on

08.05.2018.

Sd/-”

Aggrieved by the order, petitioner preferred a CMPMO No. 176 of 2018 and after hearing both the parties, this Court allowed the petition and set aside the order dated 13.03.2018. The operative portion of the order reads as under:-

“In this view of the matter, this petition is allowed and impugned order dated 13.3.2018 is quashed and set aside with further direction to the learned court below to decide the application filed by the applicant Guruprakash after affording opportunity to file reply to the application by the non applicants. As far as the contention of Mr. Singh that the application per se is not maintainable, as neither it bears any signatures of the applicant nor it supported by an affidavit is concerned, this Court is not making any observation in the same because this objection can be taken by the present petitioner in the reply and it is for the learned trial court to adjudicate on the same.”

On 06.08.2018, the learned Trial Court took up the case for consideration, however, defendant No. 1 moved an application under Section 151 CPC for taking on record the affidavit in support of the application dated 12.03.2018/13.03.2018 under Section 148 CPC and an affidavit duly attested on 04.08.2018 was annexed. On the same day, 5 defendants No. 2 and 3, through their counsel Mr. sanjiv Kalota, also moved a similar application. Both these applications were allowed vide order dated 05.01.2019, constraining the petitioners to file the present petition mainly on the ground that even in case the learned Trial Court deemed it proper to allow the applications, the same could not have been allowed without awarding costs. Reliance in support of this contention is placed upon the following judgments:-

Kailash vs Nanhku and others 2005 (4) SCC 480

Sandeep Thapar vs. SME Technologies Pvt. Ltd. 2014 (2) SCC 302

Desh Raj vs. Balkishan 2020 (2) SCC 708

As against the aforesaid judgments, learned counsel for the respondents Shri Ajay Sharma, Senior Advocate, duly assisted by Shri Ajay Thakur, learned Advocate, relied upon the judgment rendered by three-Judge Bench of the Hon'ble Supreme Court in M/s R. N. Jadi and Brothers & Ors. vs. Subhashchandra AIR 2007 SC 2571, wherein the Hon'ble Supreme Court has clearly held that the time limit fixed under order 8 Rule 1 does not take away the power of the Court to accept the written statement beyond time.

I have heard learned counsel for the parties and have gone through the records of the case.

Order VIII Rule 1 CPC, reads as under:-

1.Written Statement

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:-

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.

In Kailash Vs. Nanhku & Ors. (2005) 4 SCC 480, it was held by the Hon’ble Supreme Court that the provision contained in order 8 Rule 1 CPC is directory and not mandatory and it was further held that the court, for reasons to be recorded in writing, could permit filing of written statement beyond the period of 90 days. Though in ordinary course, the time schedule as provided under order 8 Rule 1 of CPC has to be followed as a rule and departure therefrom is an exception. Relevant observations read as under:-

“(v) Though Order 8 Rule 1 CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.”

Similar reiteration of law is found in Salem Advocate Bar Association, T.N. Vs. Union of India (2005) 6 SCC 344, wherein it was held as under:

“21.In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.”

The matter thereafter came up before a larger Bench of Hon’ble Three Judges of the Hon’ble Supreme Court in R.N. Jadi & Brothers & ors Vs. Subhashchandra (2007) 6 SCC 420 , wherein it was held that the extension of time in departure of prescribed limit is not automatic, however, the same can be granted for the reasons to be recorded in writing and on being satisfied with the reasons putforth to substantiate the failure to file written statement within the specified period are justifiable. The relevant observations are contained in paragraphs 14 and 15, which read thus:

“14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash vs. Nankhu and others (2005 (4) SCC 480) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and others (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in ALLEN vs. SIR ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?”

Similar reiteration of the legal position is found thereafter in the judgment of the Hon’ble Supreme Court in Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513.

The enunciation of law, as referred to above, leaves no room for doubt that the provisions contained in order 8 Rule 1 CPC are directory and not mandatory and that the time for filing written statement, for reasons to be recorded in writing, can be extended beyond the period of limitation, subject, of course, to the justification having been offered by the defendant for such extension in departure to the time limit fixed by the statute.

In the present case, since the suit is being tried by this Court on the original side, the provisions of Order VIII Rule 1 CPC are not directly applicable as held by the Hon’ble Supreme Court in case Iridium India Telecom Ltd. vs. Motorola Inc. (2005) 2 SCC 145. This Court has framed original side rule for the trial of the suit, on the original side as per Rule 3 of Chapter VI of the High Court of Himachal Pradesh (Original Side) Rules, 1997, ordinarily not more than one extension of time shall be granted to the defendant for filing written statement; provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient ground for such extension and supported, if so required, by an affidavit. Under Rule 4 of Chapter VI of the aforesaid rules, it is further provided that if the defendant fails to file his/her written statement within the time allowed under Rules 2 and 3 or any time extended by an order, the suit shall be set down for final disposal and if the defendant appears and shows good cause for his default, he may be allowed to defend on payment to the plaintiff of such costs, as may be awarded.

It would be noticed that it was only after taking into consideration the relevant provisions of law that the permission was granted to file a written statement. The Court had discretion to allow the application, which has been exercised in accordance with law and, therefore, the same does not warrant any interference.

Even otherwise, the proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded.

It must be remembered that the Courts are respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done.

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer.

Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504:

“Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve.”

In the matter of Sangram Singh vs. Election Tribunal, Kotah reported in AIR 1955, S.C. 425, the Hon’ble Apex Court has observed as under:

“Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provide always that justice is done to both sides) less the very means designed for the furtherance of justice be used to frustrate it.”

“Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be expectations and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle.”

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See: Blyth v. Blyth (1966 (1) All E.R. 524 (HL).

In Balwant Singh Bhagwan Singh and another vs. Firm Raj Singh Baldev Kishen reported in AIR 1969 Punjab and Haryana 197 it was held that:

“Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial ifthe original omission to give evidence or to deposit process fee arises from negligence or carelessness.”

In the matter of State of Gujarat vs. Ramprakash P. Puri, reported in 1970 (2) SCR 875, the Hon’ble Apex Court has held that:

“Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.”

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence – processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774).

A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Another vs. Rajesh and others AIR 1998 SC 1827).

The Hon’ble Supreme Court in (2007) 9 Scale 202 (R.N. Jadi & Brothers vs. Subhash Chandra), considered the procedural law vis-à-vis substantive law and observed as under:

“9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.”

Procedure is only handmaid of Justice:- All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in Sambhaji and others vs. Gangabai and others (2008) 17 SCC 117, the Hon’ble Supreme Court held as under:

“6.(14) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”

In 2011 (1) Scale 469 Rajendra Prasad Gupta vs. Prakash Chandra Mishra and others, the issue before the Hon’ble Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without there being any order on the withdrawal application and as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Hon’ble Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Hon’ble Supreme Court observed thus:

“5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted.”

The Hon’ble Supreme Court in 2011 (6) Scale 1 Mahadev Govind Gharge and others vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, reiterated the legal position regarding procedural law and observed:

“28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold…..”

Discussion on the subject could not be completed in case reference is not made to a fairly recent judgment of the Hon'ble Supreme Court in State vs. M. Subrahmanyam (2019) 6 SCC 357, wherein it was held that the matter of procedure is a handmaid of justice and substantive justice must always prevail over procedural or technical justice. It was further held that procedural lapse cannot be placed on a par with substantive violation of law.

It is apt to reproduce paras 7 to 9 of the judgment, which read as under:-

In Bihar SEB v. Bhowra Kankanee Collieries Ltd. 1984 Supp SCC 597, the Court opined:

“6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction….. The question is whether the degree of negligence is so high as to bang the door of court to a suitor seeking justice. In other words, should an investigation of facts for rendering justice be peremptorily thwarted by some procedural lacuna?”

The failure to bring the authorisation on record, as observed, was more a matter of procedure, which is but a handmaid of justice. Substantive justice must always prevail over procedural or technical justice. To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that the present is a matter relating to corruption in public life by holder of a public post. The rights of an accused are undoubtedly important, but so is the rule of law and societal interest in ensuring that an alleged offender be subjected to the laws of the land in the larger public interest. To put the rights of an accused at a higher pedestal and to make the rule of law and societal interest in prevention of crime, subservient to the same cannot be considered as dispensation of justice. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law.

In Sakshi vs. Union of India, (2004) 5 SCC 518, the Court observed:

“31.…. There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.”

In Varun Pahwa vs. Renu Chaudhary (2019) 15 SCC 628, the Hon'ble Supreme Court while dealing with the case of amendment of the plaint, reiterated that the rules or procedure cannot defeat substantive rights of the parties.

It is apt to reproduce the relevant observations as contained in paras 8 to 11 of the judgment, which read as under:-

The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

In State of Maharashtra vs. Hindustan Construction Company Limited1, this Court held as under:-

“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn.2 – an appeal that came up before the Court of Appeal, Brett M.R. stated:

“... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made....”

In Charan Das v. Amir Khan3 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case.

*** *** ***

In Jai Jai Ram Manohar Lal 4 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held:

“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”

This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7):

“7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.”

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another5, this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-

“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:

(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;

(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;

(iii) where the non-compliance or violation is proved to be deliberate or mischievous;

(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;

(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law.

Adverting to the contention of the petitioners that the cost ought to have been imposed by the learned Court below while allowing the application for amendment, I do not find any merit in such contention as the bonafide of the respondents/defendants is duly established on record from the application filed by the petitioners seeking various documents from the revenue/different agencies. Record further reveals that on receipt of these documents, the written statement came to be filed without any further delay. In such circumstances, the petitioners cannot claim any right for awarding cost.

In view of the aforesaid discussion and peculiar facts and circumstances of the case, I find no merit in this petition and the same is accordingly dismissed.

Before parting, it needs to be noticed that it is really painful and disturbing to note that the suit in question was instituted in the year, 2017, yet it has only reached at the stage of filing written statement, which too, has been assailed for the second time by the petitioners. Accordingly, the learned Trial Court is directed to decide the suit as expeditiously as possible and in no event later than 31st December, 2022.