Allowed

Sri Gopal Upadhyay and Ors. v. Surya Deo Upadhyay and Ors.

Patna HC21 Jun 2019CWJC/10865/2010

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application to amend a plaint by the Sub Judge at Gaya. The High Court set aside the impugned order on the ground of non-application of judicial mind due to lack of discussion on statutory grounds, directing the lower court to decide the amendment application afresh within sixty days.

What did the court decide?

Impugned order dated 29.4.2010 set aside; writ petition allowed; lower court directed to pass fresh order on amendment application within sixty days.

Sri Gopal Upadhyay and Ors. Vs Surya Deo Upadhyay and Ors. — Property and Title | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.10865 of 2010

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======================================================

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SRI GOPAL UPADHYAY and ORS S/O Sri Gobardhan Upadhyay, R/O Mohalla Ramdhanpur, P.S. Kotwali, District- Gaya.

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S/O Madan Mohan Upadhyay, S/O Sri Gobardhan Upadhyay, R/O Mohalla Ramdhanpur, P.S. Kotwali, District- Gaya.

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Sri Krishna Kumar Upadhyay, S/O Sri Gobardhan Upadhyay, R/O Mohalla Ramdhanpur, P.S. Kotwali, District- Gaya.

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Sri Ram Pravesh Upadhyay, S/O Sri Gobardhan Upadhyay, R/O Mohalla Ramdhanpur, P.S. Kotwali, District- Gaya.

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... ... Petitioner/s

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Versus

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1. SURYA DEO UPADHYAY and ORS S/O Late Jadupat Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Kapil Deo Upadhyay, S/O Late Jadupat Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Tarkeshwar Upadhyay, S/O Late Jadupat Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Prahalad Upadhyay, S/O Sri Suryadeo Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Dhruv Upadhyay, S/O Sri Suryadeo Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Kanhaiya Upadhyay, S/O Sri Suryadeo Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Vijay Upadhyay, S/O Sri Suryadeo Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Ajay Upadhyay, S/O Sri Suryadeo Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Jeetendra Upadhyay, Minor Son Of Sri Kapildeo Upadhyay Under The Guardianship And Well Wish And Next Friend Of His Fathe R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas.

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Sriman Upadhyay @ Santosh Upadhyay, S/O Sri Tarkeshwar Upadhyay, R/O Village Mangraon, P.O. Mangraon, P.S. Naseerganj, District- Rohtas. ... ... Respondent/s

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======================================================

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Appearance : For the Petitioner/s : Mr.J.S.Arora, Sr. Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL ORDER 8 21-06-2019 Heard Mr. Jashawir Singh Arora, learned senior

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counsel appearing on behalf of the petitioners.

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The petitioners are aggrieved by the order dated 29.4.2010 passed in T.P.S. No. 196/150 of 2003/2009 by the Sub Judge-7, Gaya, whereby the application for amendment of

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Patna High Court CWJC No.10865 of 2010(8) dt.21-06-2019 2/3

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the plaint was rejected.

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This Court had issued notice to respondent Nos. 1 to 10 vide order dated 4.9.2012. On 11.4.2014 the Court noticing the office notes accepted the notice on respondent Nos. 2 to 5,9 and 10 as valid service. Thereafter notice was issued on respondent Nos. 1 and 6 but notice could not be effected on respondent nos. 1 and 6 and the petitioner has to take steps for substituted service of notice on them yet they have not chosen to contest the present writ application.

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The petitioners have challenged the order dated 29.4.2010 passed in T.P.S. No. 196/150 of 2003/2009 by the Sub Judge-7, Gaya primarily on the ground that while rejecting the application for amendment, the court below has not assigned reason inasmuch as there is no discussion in the order that the amendment is not within the parameter of Order 6 Rule 17.

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Mr. Arora, learned senior counsel appearing on behalf of the petitioners submits that the amendment is not designed to alter or change the nature of the suit and as such the Court below was under obligation to allow the amendment for final adjudication of the lis between the parties. Amendment at any stage is permissible provided it is within the parameter of Order 6 Rule 17 and it is not malafide or designed to alter the nature of

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Patna High Court CWJC No.10865 of 2010(8) dt.21-06-2019 3/3

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the suit.

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From perusal of the order dated 29.4.2010 the Court does not find any discussion that the amendment sought is designed to change the nature of the suit.

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Under the aforesaid circumstances, the order dated 29.4.2010 suffers from the vice of non-application of judicial mind. Accordingly, the order dated 29.4.2010 is set aside and the writ petition is allowed. The Court below is directed to pass appropriate fresh order on the merit of the application for amendment and in view of the settled parameters of the amendment. The amendment should be accepted if it is not designed to alter the nature of the suit. Necessary order afresh on the application for amendment must be passed by the court below within a period of sixty days from the date of receipt/production of a copy of this order.

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With the aforesaid, the writ petition stands allowed and disposed of.

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(Anil Kumar Upadhyay, J)

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spandey/-

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Sri Gopal Upadhyay and Ors. v. Surya Deo Upadhyay and Ors.

Case brief

What is this about?

What did the court decide?

Sri Gopal Upadhyay and Ors. v. Surya Deo Upadhyay and Ors.

Case brief

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What did the court decide?

What the court decided

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