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Judgment
A.K. Shrivastava, J.—By this petition under Article 227 of the Constitution of India, the petitioner is challenging the validity of impugned order dated 11.01.2011 passed by II Civil Judge, Class-1, Mandla in Civil Suit No. 41-A/2010 whereby application under Order VI Rule 17 of CPC and another application under Order XXVI Rule 9 of CPC are rejected. On bare perusal of the impugned order it is gathered that the application under Order VI Rule 17 CPC has been rejected solely on the ground of delay. To me, if the application of amendment is otherwise necessary and application has not been rejected on merits but only on the ground of delay, the defendant/respondent can be compensated by cost.
In this view of the matter, the application of plaintiff under Order VI Rule 17 CPC (Annexure-P/2) dated 4.1.2011 is hereby allowed on payment of cost of Rs. 2,000/- (Rupees Two Thousand) which will be deposited by the plaintiff on or before 30.09.2013. The petitioner-plaintiff shall be free to amend her plaint only after she deposits the amount of cost in the Trial Court. The amount of cost which shall be deposited by the petitioner-plaintiff may be withdrawn by the defendant. Needless to say that if the petitioner-plaintiff fails to deposit the amount of cost on or before 30.9.2013, the impugned order shall stand revived and this petition would stand dismissed.
So far as another application under Order XXVI Rule 9 CPC is concerned, on bare perusal of the impugned order it is gathered that because the application under Order VI Rule 17 CPC has been rejected, this application has also been rejected. Since this Court has already allowed the application of plaintiff to amend the plaint eventually the impugned order pertaining to rejection of application under Order XXVI Rule 9 CPC is also set aside with a direction to the Trial Court to re-decide this application. Resultantly, this petition succeeds and is hereby allowed as indicated above. The impugned order dated 11.1.2011 is set aside. No costs so far as this petition is concerned.