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KALAWATI ALIAS KARAWATI AND ANOTHER versus KABAHATA AND OTHERS

High Court of Judicature at Allahabad

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Kalawati Alias Karawati And Another v. Kabahata And Others - WRIT - C No. 9816 of 2006 [2006] RD-AH 3804 (17 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 23

Civil Misc. Writ Petition No. 8390 of 2006

Ram Kishan Vs. Ratan Singh & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

In this petition the order of revisional court dated 1.12.2005 is under challenge. The revisional court has confirmed the order of trial court  dated 25.3.2004 permitting an amendment in the plaint for adding relief of declaration in regard to a decree passed in earlier suit No. 786 of 1996.

In the present suit No. 26 of 1999 the respondent plaintiff No. 1 had moved for amendment in the plaint under Order VI, Rule 17 C.P.C. praying for addition of the aforesaid relief and also certain facts in regard thereto. The earlier suit No. 786 of 1996 was between respondent Nos. 7 and 9 on one side as plaintiffs and 6 and 8 on the other side as defendants. The present petitioner and the respondent No. 1 were no where as parties to that suit. Obviously, any decree passed in the earlier suit are not concerning to the present petitioner and respondent No. 1.

Learned counsel appearing for the petitioner while replying to the query of the court as to how he is concerned with decree passed in the earlier suit, nothing satisfactory has come forth. The same query when made to the respondents' counsel no satisfactory answer has come from him as to how he is aggrieved against the decree passed in Suit No. 786 of 1996. Learned counsel has simply tried to satisfy the court saying that the said decree is a peace of evidence available to the defendants of this suit for substantiating their claim over the property in question and in that context he has relied upon a case law of Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, 1998 (32) A.L.R. 740. It is true that the decree passed in earlier suit is a peace of admissible evidence but what would be its value is a heavy weight question before the court when it is to be relied upon against the claim of the other party (respondent No. 1/plaintiff). Since the decree in earlier suit between respondent Nos. 6 & 8 and 7 & 9 is not binding upon the plaintiffs of the present suit an addition of  such relief of declaration about the said decree as being null and void in the plaint is hardly warranted. If the plea taken in written statement by the defendants of this suit, that by virtue of decree passed in earlier suit they are the owners in possession over the disputed property that may be replied by filing a replication. In this view of the matter, the amendment, which has been incorporated in the plaint, is not such, which should have reasonably been permitted by the courts below and to that extent the orders do require interference in the present writ petition.

In the aforesaid facts and circumstances, this writ petition is disposed of with a direction to the courts below that the amendment, which has been incorporated by way of incorporating additional relief in the plaint, shall be scored out and the plaintiff respondent No. 1 shall be given an opportunity of filing a replication in the trial court and then to further proceed in the suit in accordance with law.

16.02.2006

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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