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Bharat Bhushan Singh v. Iiird A.D.J., Deoria And Others - WRIT - C No. 43272 of 1999 [2006] RD-AH 401 (6 January 2006)


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Court No.26

Civil Misc.Writ Petition No.43272 of 1999

Bharat Bhushan Singh


III Additional District Judge, Deoria and others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order dated 22.8.1998 (Annexure 5 to the writ petition) passed by the respondent No.2 and order dated 2.8.1999 (Annexure 6 to the writ petition) by which the amendment application as well as the revision filed by the petitioner has been dismissed.

The plaintiff-petitioner filed a suit for injunction restraining the respondents from interfering with the peaceful possession and use over the premises in suit given in the plaint. The allegation in the plaint was that the petitioner was an allottee of the aforesaid house from Zila Parishad, Deoria and has been in possession of the same.  In the year 1988, the respondent No.5 was transferred to Deoria and he requested the petitioner to permit him to stay for some time during which he will make an alternative arrangement.  The respondent No.5 was transferred to Siddharthnagar. Since the accommodation was not immediately available, therefore, the respondent No.5 requested the petitioner to let his family to remain in the said house but the respondent became dishonest and got the name entered with the respondent No.3 and started interfering in his possession.  Then the necessity arose for filing the present suit.  

A written statement was filed by the defendant-respondents.  Since the defendant-respondents were permitted by the petitioner to stay in the house, therefore, on the basis of the advice, an amendment application was filed seeking a relief for possession by amending the plaint.  

An objection was filed on behalf of the defendant-respondents but the Trial Court without considering the fact a clear averment was made in the amendment application that as the relief of possession was not sought and from the allegation made in the plaint it was clear that the defendant- respondents were permitted to stay in the accommodation, therefore, the relief of possession was necessary.  But the trial Court without considering this aspect of the matter has rejected the same vide its judgment and order dated 13.4.1998 only on the ground that it appears that during the pendency of the suit, the plaintiff-petitioner has been dispossessed from the property in dispute and no date and time has been mentioned in the application for amendment, therefore, after the lapse of seven years the same cannot be permitted.  The revisional Court has also without considering the aspect of the matter was pleased to dismiss the revision.

Aggrieved by the rejection of the revision the petitioner has filed the present writ petition.  The writ petition was entertained and by order dated 12.10.1999, this Court has stayed the further proceedings in Suit No.1794 of 1991.

It has been averred on behalf of the petitioner that in view of the provisions of Order 6 Rule 17 of Civil Procedure Code, the amendment can be allowed at any stage.  The proviso has been added in the year 1999, therefore, the same is not applicable.

The counsel for the petitioner has placed reliance upon a judgment of the Apex Court in Salem Advocate Bar Association Tamilnadu, petitioner Vs. Union of India-respondent and has placed reliance para 27 of the said judgment.  The same is being reproduced below:-

"Order VI Rule 17 of the Code deals with amendment of pleadings.  By Amendment Act 46 of 1999, this provision was deleted.  It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage.  Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications, which are filed to delay the trial.  There is no illegality in the provision."  

In view of the aforesaid fact, the counsel for the petitioner submits that the Apex Court itself has held unless and until the Court come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the Trial.  The further reliance have been placed by Sri Namwar Singh, who appears on behalf of the petitioner is of the judgment of the Apex Court in Pankaja and another Vs. Yellappa (Dead) by LRS. and others reported in 2004(6) Supreme Court Cases, 415 and has submitted that the Apex Court has clearly held that there is no absolute rule that amendment in such a case should not be allowed.  It is the forged discretion.  Court's discretion in that regard depends upon the facts and circumstance of the case and has to be exercised on a judicious evaluation.  An amendment subserving the ultimate cause of justice and avoiding further litigation should be allowed.

In such circumstances the counsel for the petitioner submits that the Trial court as well as  revisional court has clearly erred in law in dismissing the application for amendment filed on behalf of the petitioner because it does not change the nature of the suit and the rights of the parties are not finalized.

On the other hand the counsel for the respondents has submitted before this Court that the amendment sought is after a lapse of seven years and has no date and time has been mentioned in the amendment application regarding dispossession, therefore, it clearly goes to show that the plaintiff-petitioner was not in possession of the property when he is filed a suit for Simplicitor injunction and they have made the amendment application after a lapse of seven years, therefore, the same cannot be allowed.  The finding recorded by the Courts below a finding of fact and the writ petition is liable to be dismissed.

After hearing counsel for the parties and after perusal of the record it clearly goes to show that at the initial stage the plaintiff filed a suit for injunction but subsequently as it has been averred in the plaint that the defendant has been permitted to remain in house with the permission of the petitioner, therefore, the relief of possession was necessary.  Both the Courts below have not considered this aspect of the matter and has rejected the application for amendment only on the ground that it has been filed after a lapse of seven years and as no time and date have been mentioned in the application for amendment regarding dispossession, therefore, the amendment application cannot be allowed.  It is also to be noted that the question of limitation was not raised by the defendant respondent in the objection filed for amendment application.

In my opinion, the Court below was not justified in rejecting the application for amendment. In view of the Apex Court judgment as the nature of the suit is not going to be changed and to avoid any further litigation the Courts below ought to have taken into consideration this fact and should have allowed the amendment application.  In view of the aforesaid fact, the orders passed by the Court below rejecting the application for amendment of the petitioner is hereby set aside. The amendment is allowed and the trial Court is directed to permit the petitioner to incorporate the necessary amendments and decide the suit expeditiously.  The Trial court will proceed with the suit on merits only on payment of Rs.2,000/- cost to the defendant-respondents.

The writ petition is allowed.  There shall be no order as to costs.




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