Deepak Kumar Pandey And 2 Others vs Ajay Gupta And 8 Others
2023 Latest Caselaw 9581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 

 
Case :- S.C.C. REVISION No. - 36 of 2023
 

 
Revisionist :- Deepak Kumar Pandey And 2 Others
 
Opposite Party :- Ajay Gupta And 8 Others
 
Counsel for Revisionist :- Madhav Jain
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the revisionist.

Learned counsel for the revisionist submitted that revisionist-defendant has moved amendment application dated 27.01.2023 under Order 6 Rule 17, C.P.C, which has been rejected by the court below vide order dated 16.03.2023 only on the ground of delay.

He next submitted that in light of judgment of Apex Court in the matter of Sampath Kumar Vs. Ayyakannu: 2002 0 Supreme(SC) 923, amendment application cannot be rejected only on the ground of delay.

I have considered the submission made by learned counsel for the revisionist-defendant and perused Order 6 Rule 17 of C.P.C. as well as judgment of Apex Court so relied upon. There is no doubt that amendment application usually may not be allowed after commencement of a trial, but in case court is of the view that even after due diligence, party could not have raised the matter before commencement of trial, amendment may be allowed.

In the present case, the only finding of the court below is about the delay, but there is no finding, as to whether due diligence was made by revisionist-defendant for amendment sought.

The Apex Court in the matter of Sampath Kumar(Supra) has also taken the same view. Paragraph 9 of the said judgment is quoted hereinbelow:

"9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

In view of the facts and circumstances of the case, revision is allowed. impugned order dated 16.03.2023 is set aside. The matter is remanded back to court below to decide the amendment application dated 27.01.2023 afresh with specific finding upon the due diligence and delay, maximum within four weeks from the date of production of certified copy of this order without granting unnecessary adjournment to either of the parties.

Order Date :- 3.4.2023

ADY