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Judgment
18 paragraphs · 358 wordsHeard.
The present petition is against the order dated 08.02.2018, whereby amendment proposed by the plaintiffs was dismissed on the ground that the
proposed amendment cannot be allowed.
Shri H.B Agrawal, learned senior counsel assisted by Shri J.K. Saxena, counsels for the petitioner would submit that the order is cryptic and
without any reason would submit that when the application for amendment was already allowed, consequently, the proposed amendment has to be
allowed as a matter of right to the plaintiff, which cannot be denied as otherwise the pleading made by the defendants would remain unrebutted.
Perused the order. In the last paragraph of the order, the reasons as would reflect from the order is that one of the defendant No.6 has filed a
written statement and consequent to that other defendants No.1 & 2 have moved an amendment, which was added as para 6A in the written
statement. When the written statement was amended by two of the defendants i.e. defendants No.1 & 2, the plaintiffs sought for amendment. Trial
Court dismissed the application of amendment on the ground that the same cannot be allowed. The order would show that no justification or reason
has been shown to disallow such amendment. Unless the mind of the Court is reflected in the order-sheet, justification cannot be inferred. It is obvious
that when the amendment has been allowed in the written statement, the plaintiffs shall get the right to amend the plaint to rebut the same, otherwise
the pleading of defense will remain unrebutted.
In the instant case, the Court disallowed the amendment application only on the ground that the amendment has been made by defendants No.1 & 2
because one of the defendants i.e. defendant No.6 has filed the written statement, as such the plaintiffs cannot be allowed to file the amendment
application is completely misconceived and cannot be sustained in the eyes of law.
In the result, the petition is allowed and the order dated 08.02.2018 dismissing the application for amendment is set aside. Let necessary amendment
be carried out within two weeks from the date of production of this order.