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Rajendra v. Bansi - WRIT - C No. - 52879 of 2007 [2007] RD-AH 17581 (10 November 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).


Hon. Dilip Gupta, J.

The plaintiff no.2 of Original Suit No.1202 of 1993 has filed this petition for setting aside the order dated 25th August, 2007 passed by the learned Additional District Judge (Court No.2), Jaunpur by which the Amendment Application filed by the petitioner in Civil Appeal No.55 of 2005 was rejected.

The Original Suit had been filed for permanent injunction. It was dismissed by the Trial Court by means of the judgment and decree dated 24th May, 2005. The Civil Appeal No. 55 of 2005 was filed by the petitioner against the aforesaid order dated 24th May, 2005. During the pendency of the Civil Appeal, the petitioner moved an Amendment Application. The amendment that was sought to be added by addition of paragraph no.7-A in the plaint was that within the disputed plot, a temporary shed existed which should be demolished.

The Court has rejected the Amendment Application in view of the statement of PW-1 that this temporary construction had been existing from before the filing of the suit and the plaintiff wanted to resile from the admission made.

Learned counsel for the petitioner submitted that the Court has adjudicated upon the merits of the matter contained in the Amendment Application which is not permissible in view of the decision of the Supreme Court in Andhra Bank Vs. ABN Amro Bank N.V. & Ors., (2007) 6 SCC 167.

In the present case, the amendment was sought to be added at the appellate stage. The prayer that was made was for the demolition of the temporary shed. In order to find out whether such an amendment would be necessary for the decision of the real controversy between the parties concerned and in order to determine whether there was any delay in filing the Amendment Application, it was imperative for the Court to examine whether the constructions had been raised during the pendency of the Appeal. It found that PW-1 stated that the constructions existed from before the filing of the suit. The petitioner was plaintiff no.2 in the Original Suit and in view of the averments made in paragraph ''5' of the petition, it is clear that it is only the petitioner who moved the Amendment Application and this Writ Petition has also been filed by the petitioner only. The plaintiff no.1 had not filed the Amendment Application and nor has he filed the present petition. It is, therefore, clear that under the garb of the Amendment Application, the petitioner seeks to resile from the statement made by PW-1. It is not disputed that such a statement was made. The decision of the Supreme Court in Andhra Bank (supra) is, therefore, not applicable to the facts of this case.

Such being the position, there is no error in the order passed by the Courts below which may warrant interference by this Court under Article 226 of the Constitution. The petition is, accordingly, dismissed.

Date: 1.11.2007



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