The discretion to allow an amendment depends on whether it is imperative for proper adjudication of the case and does not fundamentally change the nature of the suit.

JAYANT NATH, J.

CM No.8902/2017 (exemption)

Exemption allowed, subject to all just exceptions.

CM(M) 267/2017 & CM No.8901/2017

1. By the present petition filed under Article 227 of the Constitution of India the petitioner seeks to challenge the order dated 25.05.2016 and 04.11.2016.

2. The background facts are that the respondent No.1/plaintiff has filed the present suit for permanent and mandatory injunction directing the defendant No.1/respondent No.2 Union Bank of India to substitute the name of the respondent No.1 in place of her late husband Shri Harinder Katyal with respect to operation of a locker. A decree of permanent injunction was also sought to restrain the bank from letting/permitting operation of the locker by the petitioner.

3. The suit was filed in 1995. Evidence of the plaintiff has been completed. On 19.5.2008 a Local Commissioner was appointed by the trial court to prepare an inventory of the articles lying in the locker. The inventory, however, it appears could not be prepared. On 18.10.2012 the respondent No.1 moved an application under Order 6 Rule 17 CPC whereby the petitioner sought to add the relief of a declaration to hand over/allow the respondent No.1 to take out the articles of jewellery as contained in the locker and also as declared by the respondent No.1 and her husband in their wealth tax returns as stri dhan. However, the trial court vide its order dated 18.10.2012 dismissed the said application on the ground that the application does not mention what are the articles of jewellery which are part of her stri dhan and are kept in the locker. The trial court also noted that the petitioner has filed the written statement in 1995 and the present application is filed in 2003. She has failed to show due diligence on her part and therefore the present application is dismissed.

4. Thereafter the respondent No.1 moved an application for review under Order 47 Rule 1 CPC of the said order dated 18.10.2012. On 14.12.2013 the present application was filed under section 151 CPC to permit the respondent No.1 to place on record a copy of list of articles lying in the locker.

5. On 16.10.2014 the trial court dismissed the review application for non prosecution. The petitioner thereafter filed an application under section 151 CPC for restoration of the said review application.

6. By the impugned order dated 25.05.2016 the trial court restored the review application, allowed the same and also allowed the application of respondent No.1 under Order 6 Rule 17 CPC and the application filed by the respondent No.1 under section 151 CPC to place on record the list of articles lying in the locker.

7. The petitioner filed an application for review of the said order dated 25.5.2016 which application was dismissed.

8. I have heard learned counsel for the petitioner. He has vehemently argued that firstly on the date, namely, 25.5.2016 at best the application for restoration of the review was listed. The trial court heard the review application, allowed the same and also allowed the application under Order 6 Rule 17 CPC without giving an opportunity to the petitioner to make his submissions. He further submits that even if the application filed by the petitioner was to be allowed it was a fit case where doctrine of relation back should not be applied as the claim which is sought to be introduced by the respondent No.1, namely, for directions to permit it to take the contents of the locker is barred by limitation. He submits that he filed his written statement in 1995 and the amendment application has been moved in 2003. The claim of respondent No.1 to the contents of the locker was barred by limitation and could not have been allowed.

9. As far as the first contention of the petitioner, namely, that he was not heard on the application under Order 6 Rule 17 CPC is concerned he has filed the review petition where his submissions have been heard. The trial court rejected his contention holding that the applications were interconn