Allowed

Sri Radhey Shyam v. the D.J. Gorakhpur and Ors.

Allahabad HC3 Aug 2021WRIC/577/1999

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a revisional order that rejected a plaintiff's application to amend a plaint. The court held that the amendment was supplementary, did not change the suit's nature, and set aside the revisional court's order, sustaining the trial court's decision.

What did the court decide?

The impugned orders dated 5.11.1998 and 28.11.1998 were set aside. The trial court's order allowing the amendment application was sustained. The writ petition was allowed with costs.

Sri Radhey Shyam Vs the D.J. Gorakhpur and Ors. — Property and Title | Allahabad HC (2021)

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Court No. - 2

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Case :- WRIT - C No. - 577 of 1999

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Petitioner :- Sri Radhey Shyam Respondent :- The D.J. Gorakhpur And Ors Counsel for Petitioner :- Swaraj Prakash,Arvind Srivastava Counsel for Respondent :- C.S.C.,Amarendra Nath Singh,D.S.Senger,M.K. Nigam

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Hon'ble Suneet Kumar,J.

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Heard learned counsel for the petitioner, learned Standing Counsel for the State and learned counsel for private respondent.

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Petitioner by the instant petition is assailing the order dated 5.11.1998, passed by Revisional Court/District Judge in Civil Revision No.123 of 1998 (Ashok and two others Vs. Radhey Shyam) arising out of order dated 14.7.1998, passed by Civil Judge (J.D.) IV, Gorakhpur, in Original Suit No.546 of 1987, (Radhey Shyam v. Ashok and others), whereby, the amendment application to amend the plaint was rejected. The order dated 28.11.1998, passed on the review application filed by the petitioner is also under challenge.

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The facts, briefly stated, is that petitioner instituted a suit for permanent injunction against the contesting respondents, wherein, it was pleaded that the petitioner was the owner and in possession of the house situated in Village Chaumukha Tappa, Bhari Vaisi Pargana Haveli, post Kampiar Ganj, Tehsil Pharenda, District Gorakhpur, detailed at the foot of the plaint. It was also pleaded that the suit property was inherited from his father and that the contesting respondents, herein, were inducted as tenants and were doing business pursuant to memorandum executed by the father of the respondents. It was further pleaded that the respondents were pressurizing the petitioner to execute sale deed in respect of the suit property in their favour and were threatening to demolish the shop and when the petitioner found the respondents digging foundation of the premises in collusion with the local police, suit for permanent injunction restraining respondents from changing the nature of the suit property was instituted.

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The respondents contested the suit by filing written statement,

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wherein, it is pleaded that the shop and adjacent land is in possession of the respondents as their own property. It was pleaded that the shop and land belongs to the respondents and they denied ownership of the petitioner or his father and pleaded that petitioner had never been in possession of the same. It was further pleaded that the shop in question was never taken on rent from the petitioner or his father. The respondents claimed ownership on the suit property and denied to have threatened to raise new construction after demolition. The respondents raised several other pleas in written statement.

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During trial an application (48-ka) was moved by the petitioner for amendment of the plaint, which was opposed by the respondents by filing objection (49-C). After hearing the parties, the trial court allowed the amendment application filed by the petitioner. Aggrieved, respondents preferred a revision which was allowed by the impugned order. The revisional court was of the opinion that by the amendment, the petitioner has attempted to resile from his admission with regard to the nature of the suit property and has tried to change the nature of the suit.

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Learned counsel for petitioner submits that revision was not maintainable against the order allowing amendment application. In support of his submission, reliance has been placed on the decision rendered by the Supreme Court in the case of Prem Bakshi and others v. Dharam Dev and others reported in ( 2002) 2 SCC 2, wherein it has been held that revision would not lie against an order allowing the amendment as the order cannot be said to have finally disposed of the case, therefore, it would not fall under clause (a) of sub-section (1) of Section 115 of C.P.C. It is further submitted that the amendment application was filed merely to explain and supplement the facts pleaded in the plaint. The petitioner has not set up any new case, rather, the suit property has been clarified by adding one word i.e. land. The description of the house has been further explained as a shop. It is further urged that no prejudice was caused to the respondents as the respondents have not yet led their evidence.

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It is urged that issues came to be framed, thereafter, the

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amendment application was filed. The relevant portion of the impugned order is extracted herein below:-

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I have considered the rulings alongwith existing plaints versions available on the original suit and the contents of application 48ka and I find that actually in the instant case by adding word land with word house in plaint paragraph-1, the plaint was sought to be amended with regard to house and land whereas at the very initial stage suit was filed only for land and not for the house. In the application 48-ka in paragraph-4 the existing pleadings, contained in the plaint for demolition of the house in question on 3.3.1987, threat is now being sought to be added and by adding paragraph-4A in the plaint what the plaintiff has tried to add is that without his consent the construction was being raised by the revisionists-defendants. In my view from these materials it is undoubtedly clear that the plaintiff himself was not sure of his case when the suit was filed and after written statement was brought, the plaintiff thought it proper to bring land alongwith house pleaded in the plaint and he also wanted to get the assertions, contained in paragraph-4 of the plaint with regard to demolition by adding word threat in respect thereof and thereafter he wanted to add plea of mutual agreement for construction which has been raised by the revisionist at a particular point of time. These are the matters, which court can not ignore to keep in mind that if at all although with regard to construction and labourer adjoining land and the building was demolished only threat was given/there was any mutual agreement between the parties for the construction as now has been pressed in 48-ka, there is no question as to why respondent should not have pleaded it from very beginning. Written statement has come. The case is ripe for evidence. In these circumstances, in view of ruling cited from the side of the revisionist, the trial court has committed error in allowing application for amendment which amount to withdrawal of admission and set-up of a new case without any reason after lapse of considerable time. In this very connection we have A.I.R. 1998 (33) page-67 Yamuna Prasad Vs. Additional District Judge Faizabad wherein our Hon'ble High Court took the view that amendment in the pleading about actual controversy after three years of the filing of the suit with a view to defeat the role accrued to other party by judgment of lower court cannot be allowed. Another ruling A.I.R. 1979 S.C. 551 Ishwar Dass Vs. State of M.P. and others says that one of the factor to be considered while disposing of amendment of pleading is the delay in making application for amendment and its reason. In the instant case, ruling cited from the side of the revisionist and in view of all above discussions impugned order, passed by trial court, has to be taken to be without jurisdiction as the trial court has not been able to consider the matter of amendment in correct prospective and the rulings cited from the side of the respondents are not helpful because these are not applicable in the facts and circumstances of this case.

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The result of all above discussions is that this appeal has to be allowed and the impugned order deserves to be set aside.

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Order

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The revision is hereby allowed with costs. Application 48-ka is

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hereby stands rejected and the trial court is directed to proceed with the suit for its expeditious disposal as the suit is old one. Fix 15.11.1998 for attendance of the parties before trial court.

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In the counter affidavit filed by the contesting respondents, it is stated that respondents denied the allegation made in the plaint and they claimed to be the owner of the shop and not tenant. It is further stated that by the amendment, the petitioner seeks to convert the suit into title suit. It is submitted by the learned counsel for the petitioner that the petitioner by the proposed amendments wanted to clarify/explain that the property was in possession of the respondents as tenants. The petitioner in the plaint had nowhere pleaded that the property in the possession and occupation of the respondents was there own property. It was clearly and unambiguously pleaded that the petitioner is the owner of the suit property, which was in possession and occupation of the respondents as tenants. By the amendment, the word 'land' along with the house/shop was added. The date on which cause of action has arisen was specifically pleaded alleging that the respondents in connivance with police authority were trying to demolish the premises. By the amendment it was further added that the respondents are also threatening to demolish the suit property.

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In my opinion, taking the proposed amendment on its face value, I am unable to persuade myself that by the amendment the nature of the suit was changed or that the petitioner attempted to resile from the averments made in the plaint. It was not pleaded by the respondents either before the court below or before this Court that the proposed amendment would prejudice the case of the respondents. It was also not the case of the respondents that any right accrued to them on the admission made in the plaint that was sought to be retracted by the proposed amendment. The amendment was merely supplementary in nature indicating and describing the details of the suit property and the nature of demolition being undertaken by the respondents.

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Looking at the proposed amendment, it is clear that the amendment is required for proper adjudication of the controversy between the parties

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and to avoid multiplicity of judicial proceedings. The proposed amendment under Order 6 Rule 17 CPC as the law stood prior to amendment of the provision mandated that the amendment could be sought at any stage of the proceedings. It is admitted by the respondents that they have yet to lead their evidence and no prejudice could be said to have caused to them, if the proposed amendment is allowed.

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The point as to whether revision would be maintainable against the order allowing the amendment application is kept open.

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Having regard to the facts and circumstances, the impugned orders 5.11.1998 and 28.11.1998 are set aside. The order of the trial court dated 14.7.1998 is sustained. Accordingly, the writ petition is allowed.

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Order Date :- 3.8.2021 piyush

Sri Radhey Shyam v. the D.J. Gorakhpur and Ors.

Case brief

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Sri Radhey Shyam v. the D.J. Gorakhpur and Ors.

Case brief

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