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Judgment
Ravi Malimath
The petitioner/plaintiff filed a suit for permanent injunction. During the pendency of the suit, he filed an application under Order - 6, Rule - 17 read with Section - 151 of C.P.C., seeking amendment of the plaint. Among other prayers, to add a prayer for declaration also. The Trial Court vide the impugned order rejected the same. Hence, the present petition. The Learned Counsel for the petitioner contends that the application has been filed at an earliest point of time, even before the commencement of the evidence. That the Trial Court misdirected itself in rejecting the application and that the impugned order is bad in law and liable to be set-aside.
The Learned Counsel for the respondent is absent.
Office note indicates that even the so-called statement of objections filed the respondent has been returned with office objections and that too has not been complied.
I have examined the impugned order and the material on record.
The Trial Court while rejecting the application was of the view that the plaintiff has failed to explain the delay satisfactorily and has not pleaded the present fact at the earliest point of time. Therefore, it was of the view that no due diligence has been shown.
On examining the same and considering the Affidavit in support of the application, I am of the considered view that the reasoning given by the Trial Court requires to be interfered with. The reasons assigned in the Affidavit constitute due diligence and sufficient cause has been shown for the delay in filing the application. The application has been filed even before commencement of evidence and there is no loss or hardship that will occur to the respondent, if the application is allowed. Even otherwise, what the plaintiff intends is to add among other prayers, a prayer for declaration that he is entitled to seek for.
However, due to substantial time of the Court being spent, the petitioner is directed to pay a sum of Rs. 5,000/- as cost with the Registry of this Court. For the aforesaid reasons, the petition is allowed. The order dated 06.04.2011, passed by the 16th Additional City Civil & Sessions Judge, Bangalore in O.S. No. 1439/2001 is set-aside. The application filed by the petitioner under Order - 6, Rule - 17, read with Section - 151 of C.P.C., is allowed. Payment of cost of Rs. 5,000/- to be made with the registry of tins Court, within a period of four weeks from the date of receipt of copy of this order.
Ordered accordingly.