1. Heard. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The petitioner has raised a grievance on account of the application under Order VI Rule 17 of the Code of Civil Procedure, having been rejected by the impugned order dated 10-07-2014.

3. The petitioner is the original defendant in R.C.S. No. 176 of 2008. Upon the institution of the said suit, the petitioner filed his written statement along with a counter claim on 05-07-2008. Prayers made in the written statement and the counter claim indicate that the petitioner had reserved a right to amend the written statement and the counter claim, in the event a T.I.L.R. is appointed and pursuant to the local inspection carried out by the T.I.L.R., it is revealed that the respondent/ plaintiff has encroached upon the land of the petitioner/ defendant.

4. The respondent/ plaintiff had stated in its plaint that a T.I.L.R. would be required to be appointed for carrying out measurement of the suit properties, for fixing the boundaries and submitting a report along with a map. Application dated 02-05-2008 Exhibit 7 was also filed by the respondent herein for the said purpose.

5. The petitioner placing reliance on prayer clause 6-B in the written statement and counter claim, submits that the respondent/plaintiff moved the application Exhibit 7 dated 02-05-2008 seeking appointment of a T.I.L.R. as Court Commissioner under Order XXVI Rule 9. The petitioner offered his reply at Exhibit 16 to the said application Exhibit 7, on 05-07-2008 along with the written statement. In the said reply, the petitioner reiterated that the Court Commissioner shall mention in his report and indicate in his map, any encroachment caused by the respondent/ plaintiff on the land of the petitioner/ defendant.

6. It is undisputed that the T.I.L.R. was appointed by order dated 12-09-2008 and he has submitted his report on 16-07-2009 along with a map. It is also not disputed that both the parties have the knowledge about the report and the map.

7. The petitioner moved an application below Exhibit 64 on 07-11-2013 seeking amendment to the written statement and the counter claim by invoking order VI Rule 17 of the Code of Civil Procedure. It is undisputed that the respondent/ plaintiff has filed an affidavit in lieu of examination-in-chief on 05-08-2013.

8. The application filed by the petitioner Exhibit 64 was rejected by the impugned order dated 10-07-2014. Grievance of the petitioner is that the Trial Court has lost sight of a material aspect in the matter, which is, that the petitioner had reserved his right to amend the written statement and counter claim and thus exercised his right by preferring application Exhibit 64. It is, therefore, canvased that neither can the petitioner be said to have delayed the proceedings, nor could it be said that the petitioner was not diligent.

9. Further submission of the petitioner is that when the examination-in-chief is filed on 05-08-2013, Exhibit 64 filed on 07-11-2013 can, at the most, be said to have been filed after three months from commencement of the trial. It is, therefore, canvassed that a period of three months can be said to be a minor delay and the respondent could be compensated with costs by condoning three months delay.

10. It is further submitted by the petitioner that the ultimate object of law in a trial ought to be that ends of justice are met and no party is subjected to any prejudice on account of technicalities if the merits involved in the matter are overwhelming. Ultimately, it has to be ensured that there is no permanent deficiency or dent left in the trial.

11. The petitioner has relied upon the judgment of the Apex Court in the case of ChanderKanta Bansal Vs. Rajinder Singh Anand, reported at 2008 (0) BCI 305. Paragraph Nos. 9 and 10 of the said judgment have been specifically pointed out. It is prayed that the petition be allowed by quashing the impugned order and Exhibit 64 be allowed in order to enab