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HIGH COURT OF DELHI
JUDGMENT
SH. MAHESH DUTT JOSHI ..... Petitioner
For the Petitioner : Mr. Ankit Kumar and Mr. Manoj Tyagi, Advs.
For the Respondent : Mr. Vidit Gupta, Adv.
[ The proceeding has been conducted through Hybrid mode ]
1. Exemption is allowed, subject to all just exceptions.
2. Application stands disposed of. CM APPL. 15785/2023 (Delay of 108 days in refiling the petition
3. This is an application seeking condonation of delay in re-filing the present petition.
4. For the reasons stated in the application, the application is allowed. The delay of 108 days in re-filing the present petition is condoned.
5. Application stands disposed of. CM(M) 532/2023 2 CM APPL. 15784/2023 (For deletion the name of petitioner No.1 from memo of parties)
6. This is an application filed under Section XXII Rule 2 r/w Section 151 CPC, 1908 seeking leave of this Court to implead the LRs of the deceased petitioner.
7. Learned counsel appearing for the petitioner submits that after filing of the present petition, the petitioner No.1 unfortunately left for his heavenly abode on 02.12.2022 necessitating the filing of the present application.
8. It is also submitted that son of deceased petitioner No.1 is already arrayed as petitioner No.2 in the present petition.
9. In view of the aforesaid and the submissions made above, the application is allowed.
10. Petitioner No.2 is impleaded as legal representative of the deceased petitioner No.1 apart from the fact that he is already arrayed as petitioner No.2.
11. Learned counsel appearing for the petitioner undertakes that the petitioner No.2 is the only legal representative who represents the deceased petitioner No.1. CM(M) 532/2023 & CM APPL. 15782/2023 (stay)
12. With the consent of the parties, the present petition is taken up for disposal.
13. The petitioner challenges the order dated 22.09.2023 in CS NO. 815/2017 titled ‘Ajay Kumar Saxena & Anr. Vs. Sh. Mahesh Dutt Joshi & Anr.’ whereby an application under Order VI Rule 17 CPC, 1908 seeking amendments to the written statement filed on behalf of CM(M) 532/2023 3 petitioner/defendant, was dismissed.
14. Learned counsel appearing for the petitioner/defendant submits that the application under Order VI Rule 17 CPC, 1908 was necessitated on account of the fact that petitioner had received certain vital documents relating to the subject suit property and the lis only on 01.09.2022.
15. Learned counsel appearing for the petitioner submits that the moment such documents were received, the petitioner without wasting any time, had filed the instant application under Order VI Rule 17 CPC, 1908 seeking amendments to the written statement.
16. Learned counsel submits that there was no delay so far as approaching the Court is concerned, once the documents which were not originally in possession of the petitioner came into the possession at a subsequent stage.
17. Learned counsel submits that the application under the Right to Information Act, 2005 was filed before the concerned authority in the month of January, 2018 and the delay in receiving the documents on 01.09.2022 cannot be made attributable to the petitioner/defendant. Thereafter, no time was wasted in approaching court with the said application.
18. Learned counsel submits that without considering the aforesaid, the learned Trial Court has merely, on the basis of delay and that the evidence on behalf of respondent/petitioner had already been filed, as also on the basis that the application lacks bona fide, dismissed the application with a cost of Rs.5,000/-.
19. Per contra, learned counsel appearing for the respondent CM(M) 532/2023 4 vehemently submits that the said application has been filed after a delay of almost five years from the date of filing the suit. Learned counsel submits that the petitioner cannot be permitted at this stage, specially, after the trial has already commenced and the evidence on behalf of plaintiff has already been filed on record, to file the application which tends to create a clog in the wheels of the proceedings.
20. Learned counsel takes this Court to the contents of the application under Oder VI Rule 17 CPC, 1908 to submit that the amendment to the written statement are extraneous to the original written statement which has been filed by the petitioner/defendant and no such amendment on facts could have been allowed by the Trial Court.
21. Learned counsel submits that the petitioner apparently has not even restricted the amendment to the documents as received from the concerned authorities, though not admitted, by the respondent/plaintiff. On that basis, learned counsel submits that no amendment in any case could have been allowed.
22. This Court has considered the rival submissions of the parties and also perused the impugned order along with the said application on record.
23. It is apparent from the perusal of the impugned order that the petitioner/defendant had, in fact, preferred an application under the Right of Information Act, 2005 in the month of January 2018 and it took considerable time for the said documents to be processed and were received by the petitioner/defendant only on 01.09.2022.
24. It is observed that the proceedings, insofar as the cross examination of the plaintiff is concerned, is yet to commence and CM(M) 532/2023 5 keeping in view the fact that amendment ordinarily can be allowed before the commencement of the trial, this Court is of the considered opinion that the receipt of information belatedly in the month of September, 2022, ought not to be a reason for the rejection of the application under Order VI Rule 17 CPC, 1908.
25. It is also observed by this Court that the relevant documents are stated to have been received on 01.09.2022 and the application under Order VI Rule 17 CPC, 1908 was filed immediately on 19.09.2022 without wasting any time. The bona fides of the petitioner/defendant, in filing the application as soon as the documents were received, are established.
26. So far as the contention of the respondent/plaintiff is concerned, qua the merits of the amendment sought to be carried out, this Court is not making any observations on such merits, lest the said findings would prejudice any of the party.
27. The Hon’ble Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another reported in 2022 SCC OnLine SC 1128 has elaborated guidelines as to in what situation and the manner in which, the amendment to the pleadings of a party are to be allowed.
28. It is trite that the amendment to the written statement are on a different footing and rigors with which the amendment to the plaint are tested, are not made applicable to that of the written statement.
29. Keeping that in view and also the judgment of Hon’ble Supreme Court in Life Insurance Corporation of India (Supra), the impugned order is set aside. The amendment as sought for is allowed. CM(M) 532/2023 6
30. It is informed that the amended written statement is yet to be filed by the petitioner/defendant.
31. The petitioner/defendant shall file the amended written statement on or before 06.04.2023 with an advance copy to learned counsel appearing for the respondent/plaintiff who shall file the replication thereto, if any, within next 10 days thereafter.
32. The aforesaid directions are of course without prejudice to the rights and contention and any objections to be raised by the respondent/plaintiff in replication to the said amendment.
33. Learned Trial Court shall proceed in accordance with law thereafter.
34. It is made clear that if there is any infraction of the aforesaid time line, the liberty so granted above, shall be deemed to have been vacated. The aforesaid directions are subject to cost of Rs. 25,000/- to be paid by the petitioner to the respondent/plaintiff on or before 06.04.2023 against a valid receipt.
35. Trial Court shall endeavour to expeditiously dispose of the suit.
TUSHAR RAO GEDELA, J. MARCH 29, 2023