GAUHATI HIGH COURT ISSUES ORDER FOR KAUSHIK DAS AND ANR. V/S PANKAJ KUMAR JAIN

GUWAHATI, India, July 19 -- Gauhati High Court issued the following order on June 18:

1. Heard Mr. S. Das, the learned counsel appearing on behalf of the petitioners. None has appeared on behalf of the respondent inspite of service being effect upon the respondent.

2. The petitioners herein have assailed the order dated 24.06.2019 passed in Misc.(J) Case No.154/2018 arising out of Title Suit No.11/2014 whereby the Court of the learned Civil Judge, Kamrup at Amingaon had rejected the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, 'the Code').

3. The learned counsel appearing on behalf of the petitioners has drawn the attention of this Court to the application filed under Order VI Rule 17 of the Code. The learned counsel appearing for the petitioners further submitted that on account of the inadvertence of the earlier counsel in not inserting the Schedule-A(i) to the plaint, the issues which arise for consideration before the suit cannot be properly adjudicated and it is under such circumstances, at a time of preparation of the evidence on affidavit of the plaintiff, the newly engaged counsel had advised for filing an application under Order VI Rule 17 of the Code seeking amendment of the plaint. The learned counsel for the petitioners further drawing the attention of the contents of the application under Order VI Rule 17 of the Code submitted that from a perusal of the said application itself it would show that the amendments which have been sought for would not change the nature and character of the suit. He therefore submitted that the amendments ought to have been allowed taking into account that it was an inadvertence of the learned counsel who was earlier representing the plaintiff, the ScheduleA(i) was not inserted and immediately after engaging the newly engaged counsel upon the death of the earlier counsel, this aspect came to light. He therefore submitted that the learned Trial Court ought not to have rejected it merely on the ground of there being no due diligence in as much as the due diligence was properly explained in paragraph No.2 of the said application.

4. This Court has duly considered the submission and has also perused the said application by which amendment was sought for. The reason so assigned by the learned Trial Court in rejecting the said application is only on the ground that the trial had commenced and there was no due diligence. The approach adopted by the learned Trial Court appears to be not proper taking into account that the reading of paragraph No.2 of the said application, it is seen that the petitioners had duly mentioned as to how the inadvertence of not inserting the Schedule-A(i) to the plaint was discovered and immediately thereupon the application be filed.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=U%2BbhtlrLe2adAHN8Tz%2F1d%2BGnGLGPJZmB5uVdZ12U1clNzEG7Z4NBmohb6%2FMxGKEQ&caseno=CRP(IO)/123/2020&cCode=1&cino=GAHC010113992020&state_code=6&appFlag=)

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