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Smt. Janki Devi And Others v. Vth Additional District & Sessions Judge, Court No.V & Ors. - WRIT - C No. 25775 of 2006 [2006] RD-AH 9364 (10 May 2006)


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Court No. 23

Civil Misc. Writ Petition No. 25775 of 2006

Smt. Janki Devi & others                                              ...................Petitioners


Vth Addl. District & Sessions Judge,

Court No. V, Ghaziabad & others                                 ...............Respondents

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioners.

This petition challenges the order of the courts below dated 24.3.2005 whereby the trial court had rejected petitioners' application under Order VI, Rule 17 C.P.C. and the order of the revisional court dated 17.2.2006 by which the revisional court has dismissed the petitioners' revision.

By the proposed amendment in the plaint the petitioners prayed before the trial court for incorporating the amendment and adding a relief for cancellation of sale deed dated 30.01.2001. Prior to this the relief already taken in the plaint is with regard to cancellation and declaration of three sale deeds dated 09.02.1982, 07.06.1989 and 08.01.1997. The fourth sale deed about which the amendment has been sought is also of a prior date of filing of the suit. The courts below have rejected the prayer for amendment on the ground that this sale deed to be included in the relief clause for its cancellation did find mention in the written statement of the defendants dated 17.02.2003, the copy of which was furnished to the petitioners plaintiffs on that date itself. Thus, in the opinion of the courts below the plaintiffs had notice of execution of this sale deed dated 30.01.2001 since  February, 2003 but much after the commencement of the trial of suit the amendment application dated 5.2.2005 (Annexure No. 6) was given by the plaintiffs. Thus, in the light of added proviso to Order VI Rule 17 C.P.C., which has been brought by way of amendment in the year 2002, the courts have not found it proper to allow such amendment and accordingly the prayer for the same has been refused. I do not find any infirmity in the orders of the courts below. The trial of the suit has already commenced before two years of presentation of this amendment application and the facts, which are proposed to be brought in the pleadings of the plaint, were already within the knowledge of the plaintiffs since 17.2.2003. Accordingly, if such application has been dismissed  by the court, the order so passed is not at all challengeable in writ jurisdiction of this court.

The petition having no force is hereby dismissed.




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