IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 1984 of 2010 (M/S) Beer Bahadur Thapa & Anr. ..……… Petitioners Versus Major Raj Bahadur Thapa and others ……… Respondents Mr. Neeraj Garg, the learned counsel for the petitioners. Ms. Anjali Noliyal, the learned counsel for the respondent no. 1. Hon’ble Tarun Agarwala, J. Heard Mr. Neeraj Garg, the learned Counsel for the defendants and Ms. Anjali Noliyal, the learned Counsel for the plaintiff/opposite party. The plaintiff instituted a suit for possession alleging that pursuant to some decree and compromise, the possession was given to the plaintiff, but thereafter the defendant had forcefully taken back the possession. The defendant entered appearance and filed his written statement contending basically that the plaintiff had never taken the possession pursuant to the compromise entered into between the parties in the year 1986. Various other stands were also taken by the plaintiff which are not relevant for the purpose of disposing of this writ petition. During the pendency of the suit, the issues were framed and after the evidence of the parties, the defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of his written statement. By this amendment, the defendant prayed to bring on record the fact that a restoration application was filed for the setting aside the ex parte decree in the year 1986 in which the court below, as an interim measure, had stayed the decree and based on this averment, two legal issues were drawn which were sought to be incorporated through the amendment application, namely, that the suit filed by the plaintiff was barred by Order 2 Rule 2 of the CPC and that the suit was also liable to be stayed under 2 Section 10 of the CPC. This amendment application was resisted by the plaintiff who alleged that the entire purpose was to delay the proceedings and that in any case, the amendment cannot be allowed in view of the proviso to Order 6 Rule 17 of the CPC. The trial court, after considering the matter, rejected the amendment application holding that no amendment could be allowed at this stage in view of the proviso to Order 6 Rule 17 of the CPC. The petitioner, being aggrieved, filed a revision, which was also rejected with the observation that since legal issues had been raised, it was not necessary for the defendant to amend the writ petition and that such legal issues could be addressed by the defendant at the stage of the hearing of the case. The defendant, being aggrieved, by the said orders has now preferred the present writ petition. After hearing the learned Counsel for the parties, the Court finds that the suit was instituted in the year 2002. More than 8 years have elapsed and such legal issues with regard to the provision of Order 2 Rule 2 of the CPC and Section 10 of the CPC ought to have been raised at the very inception and consequently, the filing of the amendment application at this belated stage was rightly rejected by the trial court. Since the revisional court has already made an observation that it would be open to the defendant to raise these legal pleas at the stage of hearing, this Court is not inclined to interfere with the impugned orders at this stage and make it open to the defendant to challenge the orders of the trial court, if aggrieved, after the suit is decided by raising it as a ground under Section 100 of the CPC in an appropriate appeal. The writ petition is accordingly dismissed with the aforesaid observation. (Tarun Agarwala, J.) Dated 24.11.2010 Prabodh