SHREEPRAKASH JAISWAL vs JAIPRAKASH JAISWAL & ANR.

The present application under Article 227 of the Constitution of India has been filed by the plaintiff in a suit for declaration and consequential reliefs

pertaining to an immovable property. By the impugned order dated December 15, 2017, the trial court has refused the plaintiff’s prayer for

condonation of delay in filing the amended plaint pursuant to an order allowing such amendment dated August 21, 2015.

The petitioner vehemently argues that there is sufficient cause for the delay occasioned in filing such amended plaint, which is categorically

controverted by the opposite party no. 2, appearing in person.

It may also be recorded that opposite party no. 2 files an authority to appear on behalf of the opposite party no. 1 also, which is kept on record.

After hearing both sides and perusing the impugned order, it is seen that the trial Judge observed that the mistake committed by the plaintiff in belated

filing of the amended plaint was not a “serious matterâ€, but that the plaintiff failed to submit the same and the delay in filing the same was of 701

days. The trial Judge went on to hold that where there is “a statute stated specifically in the Codeâ€, the liberal view under Section 5 of the

Limitation Act should not be considered despite showing sufficient cause in the application.

On such premise, the court below proceeded to reject the application for condonation of delay.

A perusal of Order VI Rule 18 of the Code of Civil Procedure makes it clear that the bar to file amended pleadings beyond the period stipulated

therein is subject to such time being extended by the Court. In the present case, when the petitioner has taken out an application for condonation of

delay and has sought to make out certain cause for such delay, it was the incumbent duty of the court to consider the veracity of such cause on

merits. Mere length of delay, as is well-settled now, cannot be a deterrent in permitting a belated amended pleading to be filed.

As such, the court below, in passing the impugned order, refused to exercise jurisdiction vested in him by law in rejecting the condonation application

of the plaintiff/petitioner only on the ground of length of delay without even considering the sufficiency of the cause shown.

As such, without going into the merits of the condonation application, the impugned order dated December 15, 2017 is set aside, directing the trial

Judge to dispose of the application under Section 5 of the Limitation Act filed by the plaintiff for condonation of delay in filing his amended plaint

afresh, preferably within a period of three weeks from the date of communication of this order to the court below, upon hearing both sides and

considering the sufficiency or insufficiency of the cause shown for such delay on merits.

It is made clear that it will be open to the opposite parties to take objections, as taken before this Court, regarding the amended plaint not being in

consonance with the actual amendment allowed. If such, or any other, objection is raised, the trial court will deal with such objections upon hearing

both sides on its own merits without being influenced in any manner by any of the observations made either in this order or in the order impugned

herein.

C.O. No. 101 of 2018 is accordingly disposed of without any order as to costs.

Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.