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Bhuwan Chandra Mishra Display Structure v. State Of U.P. & Others - WRIT - B No. 40715 of 1999  RD-AH 7819 (18 April 2006)
Court No. 5
Civil Misc. Writ Petition No. 40715 of 2005
Bhuwan Chandra Mishra and others ... ......... Petitioners
State of U.P. and others ............. Respondents
Hon'ble Janardan Sahai, J
A suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by the plaintiff-respondent no.6 Smt. Kailashi Devi against Shatrughan first defendant. The petitioners who are transferees of Shatrughan were subsequently impleaded as defendants in the suit. The petitioners filed a written statement. Later on the petitioners applied for amendment of the written statement but their application was rejected by the trial court by order dated 31.5.1995 affirmed in revision by order dated 23.1.1996 of the Additional Commissioner. The petitioners then filed a revision before the Board of Revenue. The Board took the view that the amendment changes the nature of the defence case and it also held that the application was filed after long delay and consequently rejected the revision by order dated 16.4.1999. These orders have been challenged in this petition.
The case of the plaintiff Smt. Kailashi Devi was that the property in dispute plot no. 290 area 94 decimal was the bhumidari of Sankarshan, father in law of the plaintiff who had given the plot in dispute to her as gift. According to the plaintiff the plots in dispute were constituted out of certain plots and the Settlement Officer Consolidation had decided the dispute in favour of the plaintiff and the revision filed by the defendants was dismissed but by mistake the name of the plaintiff was not entered in the revenue records. In the written statement originally filed the petitioners challenged the gift and they also set out the plots numbers from which the plot in dispute was constituted. These numbers were different from the plots given in the plaint. By the amendment application the petitioners have sought to delete the paragraph relating to the plots numbers from which the plot in dispute was constituted. Certain other pleas have also been taken.
I have heard Shri Pradeep Kumar Rai holding brief of Shri Sankatha Rai counsel for the petitioners and Shri A.K. Shukla counsel for plaintiff respondent.
It was submitted by counsel for the petitioners that amendment does not change the nature of the suit or of the defence. Secondly the amendment could not have been refused on the ground of delay. In the counter affidavit the stand taken is that evidence of the parties has already been led. Counsel for the petitioners fairly made a statement that in case the evidence is already over the petitioners will not lead fresh evidence but will proceed with the case from the stage it stands at present and will not apply for recall of the witnesses for re-examination. No doubt the suit is of the year 1985 and the amendment was applied for in the year 1994 but in view of the statement made by the counsel for the petitioners that they will proceed from the present stage the petitioners are not really prejudiced by the delay.
As regards the merit of the amendment application, it appears that the view taken by the courts below upon the point that the amendment changes the nature of the suit or of the defence does not appear to be correct in respect of deletion of the averments relating to plot numbers from which the plot in dispute was constituted. The dispute on this point virtually relates to the revenue records and the admission of the parties upon the point whether the plot in dispute was constituted of the plots to which reference has been made by the plaintiff or from other plots is essentially a matter of record. It therefore does not change nature of the defence and the view taken by the courts below upon this point is erroneous. For the reasons given above, the petition is allowed. The amendment application in the written statement is therefore allowed only in respect of amendment sought in paragraph nos. 1 to 3 of the written statement. The orders of the courts below in respect of other amendments is maintained. The petitioner will not be allowed to apply for recalling of the plaintiffs witnesses for cross examination and will proceed with the suit from the present stage but if the plaintiff applies for adducing evidence in view of the amendment the defendants would have opportunity of leading evidence in rebuttal also. The suit may be disposed of by the trial court expeditiously and if possible within a period of eight months from the date a certified copy of this order is filed before the trial court by either of the parties.
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