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Pothamsetti Sarada Devi, Guntur Dist vs Naralasetti Prakasa Rao, Guntur Dist ... on 5 November, 2018
cites
Mohinder Kumar Mehra vs Roop Rani Mehra on 11 December, 2017
9. Yet, another contention raised by petitioner is that the
proposed amendment can be granted at any stage as no further
evidence is required to be adduced by both the parties and based on
the evidence available, the Court can decide the dispute between
the parties. Though the evidence is adduced, if leave is granted
permitting the petitioner to carry out the amendment, an opportunity
should be given to defendants to file subsequent pleadings under
4 MSM, J
C.R.P.No.5134 of 2017
Order 8 Rule 9 of CPC and an issue is required to be framed and
further opportunity should also be given to the parties to adduce
evidence on the additional issue framed. Therefore, on the ground
that no further evidence is required to be adduced, such proposed
amendment cannot be allowed. On the other, according to proviso to
Order 6 Rule 17 CPC and by Act 2 of 2002, no application for
amendment shall be allowed after the trial has commenced, unless,
the Court comes to a conclusion that in spite of due diligence, the
party could not have raised the matter before commencement of
trial. In view of the said proviso, the petition is not maintainable as
the trial is completed and the suit was posted for arguments. In fact,
the entire affidavit is silent as to the due diligence exercised by
petitioner, which is a mandatory requirement to entertain such
application in view of the proviso to Order 6 Rule 17 of CPC. In view
of the interdict in Order VI Rule 17 C.P.C by Act 22 of 2002 i.e.
proviso, no amendment be permitted after commencement of trial.
But, in Mohinder Kumar Mehra v. Roop Rani Mehra and others1,
the Apex Court has highlighted the mandatory requirement to claim
permission under Order VI Rule 17 C.P.C after commencement of
trial.
J.Samuel & Ors vs Gattu Mhesh & Ors on 16 January, 2012
11. In view of the law declared by the Apex Court in the judgments
referred supra, the amendment cannot be allowed since the
petitioner did not exercise due diligence and failed to bring those
facts on record before commencement of trial. By applying the
principle laid down in J. Samuel's case, referred supra., the order of
the trial Court cannot be interfered with. Therefore, I find no error in
the order passed by the Court below calling for interference by this
Court and consequently, the revision is liable to be dismissed.
Article 227 in Constitution of India [Constitution]
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
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