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MOHD. EBRAHIM versus DISTRICT JUDGE, KANPUR NAGAR & OTHERS

High Court of Judicature at Allahabad

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Mohd. Ebrahim v. District Judge, Kanpur Nagar & Others - WRIT - C No. - 53517 of 2007 [2007] RD-AH 17223 (31 October 2007)

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 AT ALLAHABAD

Hon. Dilip Gupta, J.

The defendants of Original Suit No.1552 of 2001 have filed this petition for setting aside the order dated 3rd August, 2007 passed by the learned District Judge, Kanpur Nagar in Civil Revision No.112 of 2007 by which the order passed by the learned Civil Judge (Senior Division) Kanpur Nagar rejecting the Amendment Application was set aside and the Amendment Application was allowed.

The Original Suit had been filed for declaration and permanent injunction on the basis of a mutual partition between the plaintiff and the defendants. The defendant nos. 2, 3 and 4 moved an application under Order XII Rule 6 of the Code of Civil Procedure and admitted the claim of the plaintiff. The contest was, therefore, between the plaintiff and defendant no.1. The plaintiff, however, filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment in the oral mutual partition. Objections were filed by defendant nos. 2, 3 and 4. The learned Civil Judge rejected the Amendment Application by the order dated 16th August, 2005. Civil Revision No.112 of 2007 was filed by the plaintiff which has been allowed by the order dated 3rd August, 2007. The Trial Court had rejected the Amendment Application on the ground that parties in the suit were in possession of their shares in accordance with the family settlement and, therefore, no amendment could be allowed at that stage of the suit. The Revisional Court noticed that a liberal view was required to be taken while considering the Amendment Application that had been filed at the pre-trial stage as the defendants will get an opportunity of meeting the case of the plaintiff. The Amendment Application had, therefore, been accordingly allowed subject to payment of cost of Rs.400/-.

Learned counsel for the petitioner urged that the Revisional Court committed an error in allowing the Amendment Application as the nature of the suit had been completely changed. This contention cannot be accepted. The relief claimed in the suit has not changed and by the Amendment Application the plaintiff merely alleges that he was given some more share under the partition than what was stated in the plaint. The allowing of the Amendment Application does not mean that the plaintiff is entitled to more share because that would be decided in the suit. The Amendment Application was moved at the pre-trial stage. There is no infirmity in the order passed by the Revisional Court.

The Writ Petition is, accordingly, dismissed.

Date: 31.10.2007

GS-53517-07


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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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