The importance of timely filing and the bona fides of the petitioner/defendant in allowing the amendment to the written statement.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

CM APPL. 15783/2023 (Exemption)

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 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 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 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