In a writ petition under Article 226, the petitioner challenged an order by the appellate court refusing leave to amend the written statement in a civil eviction appeal. The High Court declined to intervene.
Writ application dismissed; impugned order of appellate court affirmed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15045 of 2014
=========================================================== Smt. Malti Devi Gupta Wife of Ramesh Chandra Gupta Resident of MohallaMirzapur, Old Bus stand, P.S.- L.N.M.U. Campus, District- Darbhanga through Manoj Kumar Jha, S/o Late Chandra Shekhar Jha, Resident of MohallaBalbhadrapur, P.S.- Laheriasarai, District- Darbhanga. .... .... Petitioner/s
Versus Ashutosh Kumar S/o Late Mahanth Madan Mohan Das Resident of MohallaBengali Tola, New Market, Benta Road, Ward No. 31, P.O.- Laheriasarai, P.S.Laheriasarai, District- Darbhanga. .... .... Respondent/s
=========================================================== Appearance :
For the Petitioner/s : Mr. Uma Shankar Singh, Adv.
For the Respondent/s : Mr.
=========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 24-10-2016
Heard Mr. Uma Shankar Singh, learned counsel for the
petitioner.
Learned counsel for the petitioner after placing the impugned order has submitted that as he has placed the impugned order the appropriate order may be passed by this Court.
The legal sustainability of the impugned order by which the appellate court below has turned down the prayer for amendment in the written statement made by the defendant-appellant has been questioned before this Court by filing this application under Article 227 of the Constitution of India.
The fact is not in dispute that the suit was filed for eviction
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of the defendant from the suit premises on the ground of default in payment of rent and personal necessity. After the decree of the suit, the defendant-petitioner filed the appeal before the learned appellate court below. In the impugned order, the learned court below has recorded that the prayer for amendment has been made at the advanced stage of the argument of the appeal. The learned court below has further also rightly considered the facts and circumstances of the case before turning down the prayer for amendment. Though the law is well settled that even at the appellate stage the prayer for amendment can be entertained, but it is also well settled that such prayer for amendment is to be considered with circumspection and not liberally when made at the advanced stage of a proceeding. The fact cannot be ignored that the decree for eviction has been passed against the defendant-appellant and from perusal of paragraph-2 of the petition for amendment it transpires that the defendant has proposed to incorporate the fact regarding new construction by the plaintiff in the vacant land and starting a new business but in the pleading sought to be added by amendment, no date or period of new construction or letting out other premises has been mentioned. The learned court below has also found the amendment to be vague.
In the background of the aforementioned facts and findings, this Court, therefore, is not inclined to invoke its
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jurisdiction under Article 227 of the Constitution of India to interdict
the impugned order.
The application is, accordingly, dismissed.
Devendra/- (V. Nath, J) U
2 issues framed by the court
Whether the High Court should invoke its jurisdiction under Article 227 of the Constitution to interdict the impugned order refusing the prayer for amendment in the written statement.
Whether the appellate court below erred in turning down the prayer for amendment made at an advanced stage of the appeal proceedings.
Smt. Malti Devi Gupta
Ashutosh Kumar
V. Nath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
