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2nd September, 2014 SHRI JITENDER KUMAR ......Petitioner
Through: None.
Through:
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
C.M. No.3111/2014 (exemption)
JUDGMENT
1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + C.M.(M) No.179/2014 and C.M. No.3110/2014 (stay)
2. This petition under Article 227 of the Constitution of India impugns the orders of the trial court dated 4.5.2013 and 13.11.2013. The trial court by the order dated 4.5.2013 has allowed the application for amendment 2014:DHC:4356 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) filed by the respondents/plaintiffs. The amendment application was filed in the suit for possession and mesne profits filed by the respondents/plaintiffs.
3. A reading of the impugned orders shows that the amendment application was allowed to challenge as forged/fabricated documents which were relied upon by the petitioner/defendant no.1 in the written statement filed in the year 2007. Since the knowledge of the documents which were questioned by the respondents/plaintiffs by seeking amendment to the plaint were only filed/relied upon for the first time in the year 2007, hence the amendment application since was filed in the year 2009 i.e within three years of the date of knowledge, has been allowed.
4. It is trite that by allowing of an application, merits of the matter are not decided and only a case is allowed to be set up. Once the amendment as prayed for was not barred by limitation, and in fact arose on account of the defence of the petitioner/defendant no.1 in the amended written statement, no fault can be found with the impugned order dated 4.5.2013 allowing the amendment application.
5. There is another reason why the impugned order dated 4.5.2013 cannot be challenged by which the amendment was allowed inasmuch as on the subsequent date i.e 13.11.2013, the petitioner/defendant specifically prayed for time to file the amended written statement, and which was allowed subject to payment of costs of Rs.3,000/-. Once therefore the impugned order dated 4.5.2013 is not challenged and in fact on the next date time is sought to file the amended written statement, the petitioner/defendant no.1 is estopped from questioning the impugned order dated 4.5.2013 allowing the amendment. This is another reason why the impugned order dated 4.5.2013 cannot be interfered with.
6. Dismissed.
SEPTEMBER 02, 2014 VALMIKI J. MEHTA, J Ne