The judgment emphasizes the liberal approach to amendments but highlights the court's discretion to set aside an impugned order if subsequent applications for amendment are found to be malafide.

Sanjay Kishan Kaut, J.-Admit.

1. At the request of learned Counsel for the parties, the petition is taken up for final disposal.

2. The petitioner No. 1 along with his father filed a suit for injunction against the respondent against dispossession from the business premises bearing No. 357, Site-I, Vikaspuri, New Delhi. It is averred in the plaint that the defendant was a friend of petitioner No.1 herein and was kept as a helper in the business premises mentioned aforesaid. Certain allegations were made in the plaint against the defendant and in nutshell, the disputes between the parties and an apprehension of dispossession gave rise to the suit. The defendant appeared in pursuance to the summons issued in the suit and the written statement was filed on the very first date. Interim orders of injunction have been granted in favour of the petitioners which have continued since then.

3. In the written statement, the respondent took the plea that he was a partner in the business. The partnership was stated to be oral. The respondent, however, filed an application under Order 5 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Order") dated 15.12.1999 seeking to amend para 3 of the preliminary objection of the written statement. The respondent sought to withdraw the allegation of an oral partnership and to substitute the same with the allegations of an agreement of understanding arrived at on 15.5.1992 with the father of petitioner No.1 and the same had been reduced into a partnership deed dated 4.8.1992. Photocopies of the said two documents were sought to be brought on record and it is stated that the originals are in the custody of the petitioners. It may be noticed that the father of petitioner No. 1 passed away during the pendency of the suit and other legal heirs were brought on record as petitioner Nos. 2 to 4. The petitioners contested the application and alleged that there was no such original documents in their custody and that the alleged copies of these two documents were forged and fabricated.

4. The application came up for hearing on 25.4.2001 when the Counsel for the respondent sought to withdraw the application for amendment and the same was dismissed as withdrawn.

5. There was silence thereafter for almost two years when an application dated 6.2.2003 was filed by the Counsel for the respondent seeking restoration of the earlier application dated 15.12.1999 for amendment of the written statement. In the said application, it has been averred that the respondent was not satisfied with the performance of his Counsel and engaged a new Counsel who inspected the judicial record and it is only thereafter, it transpired that the order dated 25.4.2001 had been passed. The earlier application was thus sought to be restored or in alternative it was prayed that the respondent should be permitted to prove the two documents referred to above. It may be noted at this stage that even when the amendment application was filed, the allegation was made that since the written statement was drafted in a hurry, the respondent could not bring to light the two documents in question. This subsequent application was also withdrawn on 2.6.2004. The statement of the Counsel for the respondent was recorded that he wished to withdraw the application for restoration of the amendment application and he wanted to file a fresh amendment application.

6. The respondent thereafter filed another application for amendment, dated 30.7.2004 seeking to amend the written statement in the same terms as was sought to be done by the earlier application. This application has been allowed by the impugned order dated 22.12.2004.

7. The learned Trial Court has come to the conclusion that the factum of partnership between the parties was alleged even in the original written statement albeit being an oral partnership. Even if the documents were alleged to be forged and fabricated, an opportunity would be availabl