S.K.Gupta vs S.K.Gupta

Umeshwar Pandey, J.—Heard learned Counsel for the revisionistapplicant.

This revision challenges the order dated 1482006 whereby the petitioner''s application under Order 6 Rule 17 C.P.C. for amendment of the pleadings in written statement has been rejected by the Court below.

A suit against the petitioner for recovery of rent and damages and his ejectment from the premises in question was filed. The suit was contested and written statement has been filed long back. The trial of the suit also commenced and the evidence of the plaintiffopposite party has already been concluded. The evidence of the applicant defendant had started and the defendant was in the process of crossexamination when this application for amendment of the pleadings was moved by him. It was admitted in the written statement that the defendant though had taken the premises in question from the plaintifflandlord on monthly rent of Rs. 1,800/ but he vacated the same in the month of May, 1998. Thereafter, there was some partition in the family of the plaintifflandlord whereafter some part of the building in question fell in the share of other brother of the plaintiff from whom the defendant again took it on monthly rent of Rs. 600/. These facts even though were pleaded in the written statement, the present amendment application was moved giving further details of measurement and other things of that building and prayer has been made to incorporate two new paragraphs in the pleadings of the defendant. The Court below has rejected this prayer on the ground that the applicant revisionist in spite of the fact that the trial in the case had already commenced, had been trying to delay the disposal of the case on one or the other pretext and in the process an earlier amendment application had also been given, which was though allowed, the present one could not be entertained. It has simply been made to further delay the final disposal of the case. The case is pending for the last over eight years waiting for its disposal.

Learned Counsel while referring to the proviso attached to Rule 17 of Order 6 C.P.C. has emphasised that the trial in the case has not yet commenced. He has cited the case law of Kailash v. Nanhku & Ors., 2005 (2) AWC 1490 (SC), giving reference to paragraph14 of the judgment. It has been stressed that the definition of the trial, as given by the apex Court, does not include the recording of evidence in the case and therefore, in the present suit the trial has not yet commenced.

I do not agree with the submissions of the learned Counsel for the revisionist applicant. In the aforesaid case of Kailash (supra), the Hon''ble Supreme Court while interpreting the word ''trial'' in reference to the election petition, had held that in such matters the trial commenced from the date the election petition was filed but this interpretation of the word ''trial'' in reference to a suit would not be made applicable. The proceeding in the suit though starts from the date the plaint is presented but the trial starts only when the parties appear before the Court and after submission of the pleadings from the defendant when the Court first applies its mind to the respective cases of the parties i.e. the trial starts on the date when the suit is taken up for framing issues by the Court after perusal of the pleadings of the parties. Therefore, the interpretation of the word ''trial'' as given by the Supreme Court in reference to election petition will not be applicable to the proceeding of the suit.

In the present case, as observed in the impugned judgment itself, the trial had already commenced and it is half way complete when the evidence of the plaintiff has already concluded. The recording of evidence of the defendant has also commenced. Therefore, in the light of proviso to Rule 17 of Order VI C.P.C. if the Court below has rejected the prayer of the amendment, no fault in the order could be found requiring interference in the revisional jurisdiction of this Court. Otherwise also the facts, which have been detailed in the amendment application were already within the knowledge of the defendant and if he proposes to incorporate the same by way of amendment at such belated stage of the suit, there is every justification to reject such prayer. The order impugned does not require any interference by this Court in the present petition, which is without merits.

Accordingly, the revision is hereby dismissed.

Revision dismissed.