Himachal Pradesh High Court
_____________________________________________________________________ vs Hira Singh And Anr on 20 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CMPMO No. 107 of 2023
Date of Decision: 20.6.2023
_____________________________________________________________________
Indira Devi and Ors.
.........Petitioners
Versus
Hira Singh and Anr.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Karan Singh Kanwar, Advocate.
For the Respondents: Mr. B.M.Chauhan, Senior Advocate with Mr.
Tarlokta, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 18.10.2022, passed by the learned Civil Judge, Shillai, District Sirmaur, Himachal Pradesh, whereby an application under Order 6 Rule 17 CPC, having been filed by the respondents/plaintiffs (herein after referred to as "the plaintiff") came to be allowed, petitioners-defendants (hereinafter referred to as "the Defendants"), have approached this court in the instant proceedings, filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid order.
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 22. Precisely, the facts of the case, as emerge from the record are .
that plaintiff filed a suit for declaration claiming ½ share of late Sh. Prem Singh in the suit land. Mutation No. 2368 attested on 13.5.1977 in the name of Sh. Bhoop Sigh ancestor of the defendants also came to be laid challenge in the aforesaid suit. Plaintiffs also prayed for consequential relief of possession. Suit having been filed by the plaintiffs came to be resisted by the defendants by way of filing written statement, wherein they claimed that plaintiff No.1 Smt. Dhuri Devi was neither married to late Sh. Prem Singh, S/o Sh. Ishru, nor plaintiffs No. 2 and 3 are the sons of late Sh.
Prem Singh and as such, they are not entitled to inherit the suit land belonging to Sh. Prem Singh. After framing of issues, but before commencement of evidence, plaintiffs filed an application under Order 6 Rule 17 CPC, seeking therein permission to amend the plaint. In the afore application, plaintiffs averred that while preparing the case for evidence, it was noticed that previous counsel has not elaborated the relationship of the parties and same has not been happily worded, thus amendment proposed to be made is required to be made. Plaintiffs also averred in the application that they are not claiming any new right in the suit and proposed amendment is explanatory in nature and as such, if same is permitted, no prejudice of any kind shall be caused to the defendants, rather same would ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 3 help the court to adjudicate the case in an effective manner. Aforesaid .
application came to be opposed by the defendants by filing reply, wherein they stated that neither subsequent development has taken place in the matter, nor the proposed amendment is explanatory in nature, rather if same is allowed, same would change the entire complexion of the suit. On the basis of aforesaid pleadings adduced on record, learned trial court vide order dated 18.10.2022, allowed the application. In the aforesaid background, defendants have approached this Court in the instant proceedings, praying therein to set aside aforesaid order.
3. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this court has no hesitation to conclude that impugned order is not sustainable in the eye of law and as such, same is required to be interfered with.
4. Before ascertaining the correctness of rival submissions made by the learned counsel representing the parties vis-à-vis order impugned in the instant proceedings, it would be apt to take note of the provisions contained under Order 6 Rule 17 CPC, which reads as under:
"Order 6Rule 17 Code of Civil Procedure :
17.Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 4 manner and on such terms as may be just, and all such amendments shall .
be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
5. Bare perusal of aforesaid provision of law though suggests that court, at any stage of the proceedings, can allow either of the party to alter or amend its pleadings, which may be necessary for the purpose of determining the real questions in controversy between the parties, however, proviso to aforesaid provision clearly provides that no application for amendment shall be allowed after trial has commenced, unless the court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
6. In the case at hand, finding returned by the learned trial court, is contrary to the record. Learned trial court while allowing the application filed by the plaintiffs for amendment has recorded that trial has not commenced. Since it is not in dispute that before filing application under Order 6 Rule 17 CPC, issues stood framed and evidence by way of application stood, tendered by the plaintiffs, it is not understood that on what basis, court returned finding that trial has not commenced. Similarly, there is no whisper in the application that in spite of due diligence, ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 5 applicants/plaintiffs are/were unable to raise the matter before the .
commencement of the trial as has been noticed herein above. In an application for amendment, it has been simply stated by the plaintiffs that they are not claiming any right in the suit land and the proposed amendments are only explanatory in nature. It has been not specifically stated in the application that facts sought to be placed on record by way of amendment could not be inserted at the time of filing plaint.
7. Though it has been argued by Mr. B.M. Chauhan, learned Senior Advocate, appearing for the respondents that facts sought to be placed on record by way of amendment, were not in existence at the time of the preparation of the plaint, rather same being subsequent development, could only be placed on record by way of amendment, however he was unable to dispute that there is no mention, if any, in the application for amendment that in spite of due diligence, party seeking amendment was unable to bring such facts on record that too before commencement of the trial.
8. The Hon'ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212, has culled out certain principles while allowing or rejecting the application for amendment, which are as under:-
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 6"13. The principle applicable for deciding the application made for .
amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009)10 SCC 84, this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation.
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
9. In the aforesaid judgment, the Hon'ble Apex Court has clearly held that while allowing/rejecting the application for amendment of the plaint, it is to be seen whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case.
10. If the amendment sought to be made is read juxtaposing case set up in the plaint, there appears to be merit in the contention of Sh.
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 7Karan singh Kanwar, learned counsel for the petitioners that amendment if .
allowed would definitely change the nature and character of the case. In the present case, there is no specific averments that plaintiff acted with due diligence. By now it is well settled that it is duty of the party to satisfy the conscious of the court that it acted with due diligence and despite such diligence, it could not plead the facts sought to be pleaded now by way of amendment.
11. Coordinate Bench of this Court vide judgment dated 16.4.2018, in case titled Mohd. Latif (since deceased) through LRs v. Gaffuri and Ors, passed in CMPMO No. 27 of 2015, while taking note of the various judgments rendered by the Hon'ble Apex Court had an occasion to deal with the provision contained under Order 6 Rule 17 CPC. It would be apt to take note of the following paras of the aforesaid judgment, which read as under:
11. It is evident from the bare perusal of the proviso that ordinarily amendment in pleadings is not allowed after the trial has commenced unless the Court is satisfied that the party concerned could not apply even after exercise of due diligence for such amendment before the commencement of trial. In other words, it was incumbent upon the petitioners to have specifically pleaded that in spite of due diligence they could not raise the matter now sought to be raised. After all, right to amend is not an absolute right but depends on various well settled principles.
Concededly, there is not even a whisper regarding this fact in the entire application.
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 812. The Hon'ble Supreme Court has interpreted the proviso to be a .
requirement mandated to prevent frivolous applications for amendment intended, only to delay the trial.
13. In Salem Advocate Bar Association versus Union of India AIR 2005 SC 3353, it was held as under:-
"27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
14. What is due diligence has though not been defined in the Code, but has then been explained by the Hon'ble Supreme Court in Chander Kanta Bansal versus Rajinder Singh Anand (2008) 5 SCC 117 in the following terms:-
"16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn.2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort.
As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by DrainDyspnea (Permanent Edn.13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 9 such diligence as a prudent man would exercise in the conduct of his .
own affairs."
15. It is not in dispute that the suit out of which the present proceeding arise is pending before the trial court for recording the evidence on behalf of plaintiff's witnesses and, therefore, the trial in the case had already begun.
16. In Kailash versus Nanhku and others (2005) 4 SCC 480, the Hon'ble three Judges' Bench of the Hon'ble Supreme Court while dealing with an election petition in no uncertain terms held that in a civil suit the trial begins when the issues are framed and the case is set down for recording of evidence. It is apt to reproduce the following observations: -
"Trial" of election petition, when it commences?
13. At this point the question arises: When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence......"
17. In Baldev Singh and others versus Manohar Singh and Another (2006) 6 SCC 498, the Hon'ble Supreme Court held that commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in a limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments, as would be evident from the following observations:
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has High Court of H.P. already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 10 documents and addressing of arguments. As noted herein after, parties .
are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings. "
18. In Ajendraprasadji N.Pandeyand another versus Swami Keshavprakeshdasji N. and others (2006) 12 SCC 1, the Hon'ble Supreme Court after placing reliance on the judgment of Kailash (supra) reiterated that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence . This would be evident from the following observations:
"60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu (2005) 4 SCC 480, the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
19. What, therefore, can be discerned from the various judgments referred to above, is that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. Once it is so, then in terms of proviso to rule 17 of order 6, respondent was required to show due diligence and explain the circumstances under which he could not have raised the matter before commencement of the trial.
20. The object of introducing the amendment in order 6 rule 17 CPC vide Amendment Act 46 of 1999 and further the question when trial will commence was a subject matter of recent decision of the Hon'ble Supreme Court in Mohinder Kumar Mehra vs. Roop Rani Mehra and others, (2018) 2 SCC 132, wherein reiterating the ratio of the judgment as laid down in Salem Bar Association (supra), it was observed as under:
14. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 11 which provision was restored by Amendment Act 22 of 2002 with a rider .
in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases.
15. This Court in Salem Advocate Bar Association, T. N. Vs. Union of India, 2005 6 SCC 344 has noted the object of Rule 17 in Para 26 which is to the following effect:
"26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
16. The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal & Ors. Vs. K. K. Modi & Ors., 2006 4 SCC 385. This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:-
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 12"15. The object of the rule is that the courts should try the merits of .
the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses". Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences."
21. Indubitably, there is not even a whisper in the entire application regarding the exercise of due diligence and even if the case of the respondent is taken at its best, the cause of action can be said to be arisen to file the application for amendment when her application under order 23 rule 1 CPC came to be dismissed and the court observed that she could file an application for amendment and for addition of parties.
::: Downloaded on - 26/06/2023 20:30:48 :::CIS 13However, the present application has not been filed promptly but has .
been filed nearly three years after the passing of the order and came to be filed only in the year 2014.
22. Having failed to prove on record due diligence, the order passed by the learned trial court obviously is not only illegal but is perverse and cannot withstand judicial scrutiny."
12. In the aforesaid judgment, coordinate Bench of this Court has answered both the questions i.e. (i) at what stage, trial would be deemed to have been commenced; (ii) due diligence. While placing reliance upon the judgment passed r by the Hon'ble Apex Court in Ajendraprasadji N.Pandeyand another versus Swami Keshavprakeshdasji N. and others (2006) 12 SCC 1, it has been categorically held by this Court that the trial would be deemed to have commenced with the framing of issues. Once the issues are settled and the case is set down for recording of the evidence, party seeking amendment is necessarily required to show due diligence and explain circumstances, under which, he/she could not have raised the matter before commencement of the trial.
13. Order 6 Rule 17 CPC, if perused in its entirety, clearly suggests that it consists of two parts; first part is discretionary because the word "may" has been specifically used and it has been left open for the court to order amendment of the pleadings if necessary for determining the real controversy inter-se parties; however, second part is imperative, where specific word " shall" has been used and as such, enjoins the court to allow ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 14 all the amendments, which are necessary for the purpose to determine the .
real question or controversy between the parties, but then, party seeking amendment has to show that despite due diligence, it was unable to plead such facts at the time of filing of the plaint or written statement.
14. Mr. B.M. Chauhan, learned Senior counsel while referring to the judgment passed by Hon'ble Apex Court in Baldev Singh and Ors v.
Manohar Singh and Anr (2006) 6 SCC 498, vehemently argued that that court has unfettered powers/discretion to allow the amendment of the pleadings if it is necessary for determining the real controversy inter-se parties. There cannot be any quarrel with the aforesaid argument advanced by Mr. Chauhan, but in the aforesaid judgment, Hon'ble Apex Court has itself held that proviso to Order 6 Rule 17 CPC, restricts the Courts from permitting an amendment in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial had already commenced, but in case Court is satisfied that in spite of due diligence, the party seeking amendment was unable to plead such facts at the time of original pleadings in the plaint or written statement, it may allow the amendment, Relevant paras of the aforesaid judgment read as under:
"9.Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 15 deals with amendment of pleadings which provides that the Court may at .
any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pladings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.
15. Reliance placed upon judgment passed by the Hon'ble Apex Court in Chander Kanta Bansal v. Rajinder Singh Anand, 2008 (5) SCC 117, "by the learned Senior counsel appearing for the respondent-
defendant is also of no help because in the aforesaid case, Hon'ble Apex Court has categorically held that the proviso to Order 6 Rule 17 limits the ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 16 power to allow amendment after the commencement of trial but grants .
discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. In the aforesaid judgment, it has been held that the liberal principles, which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, but definitely to compel the court to exercise such discretion, parties are necessarily required to show that despite there being due diligence, it was unable to plead facts, which are now being sought to be brought on record by way of amendment. Relevant pars of the aforesaid judgment read as under:
"11.In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement is bonafide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
This rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 17 the commencement of trial in spite of due diligence. It is true that the power .
to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness."
16. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, there appears to be merit in the present petition and accordingly, same is allowed, as a result of which order impugned order dated 18.10.2022, is quashed and set-aside.
Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 24.7.2023, enabling it to ::: Downloaded on - 26/06/2023 20:30:48 :::CIS 18 proceed with the matter. Pending applications, if any, also stand disposed .
of.
June 20, 2023 (Sandeep Sharma),
(manjit) Judge
r to
::: Downloaded on - 26/06/2023 20:30:48 :::CIS