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MOTI LAL versus DISTRICT JUDGE, AZAMGARH AND OTHERS

High Court of Judicature at Allahabad

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Moti Lal v. District Judge, Azamgarh And Others - WRIT - C No. 42890 of 1999 [2005] RD-AH 6657 (30 November 2005)

 

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 OF ALLAHABAD

HON. SHISHIR KUMAR, J.

By means of this writ petition the petitioner has approached this Court for quashing the order dated 30.8.1999 by which the revision filed by the respondents has been allowed and the application for amendment filed on behalf of the petitioner was rejected.

The case of the petitioner is that he has filed a suit for injunction restraining the defendants not to transfer the land mentioned in the body of the plaint. The said suit was filed on 28.5.1991. When the written statement was filed, it was stated in the written statement that a will has been executed by the father of the petitioner in favour of the contesting respondents on 24.3.1990. When the petitioner came to know regarding the aforesaid fact, an application for amendment for adding a relief for declaration of the will being illegal and invalid was sought. The said amendment application was allowed. Then again an amendment application was filed seeking certain reliefs as to whether the total property has been purchased by the fund of the plaintiff-petitioner. Another amendment, which was sought, is that in the original plaint it was mentioned that they were having 1/3rd share but by way of amendment they claim ½ share. The trial court after hearing the counsel, allowed the application on payment of Rs.150/- as costs. The respondents aggrieved by the aforesaid order has filed a revision, which was numbered as 265 of 1998. The revision court after considering the relevant facts was pleased to allow the revision vide its order dated 20.8.1999. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.

It has been submitted on behalf of the petitioner that now it is well settled that the amendment could be allowed at any stage. The only relief by way of amendment was sought that in place of 1/3rd share, ½ share may be mentioned and as the total property was purchased from the fund of the petitioner, therefore, the same may be incorporated. The trial court after considering the case of the parties has allowed the application but the revisional court without considering this fact that the said amendment will not change the nature of the suit and to avoid any further litigation between the parties, the amendment was allowed but the revisional court without considering all these facts, was pleased to allow the revision.

On the other hand the counsel for the respondent submitted that in the written statement filed, it was clearly stated that the registered will was executed in favour of the defendant-respondent but immediately after that the said relief was incorporated in the plaint with a relief to pass a decree for declaration pronouncing the registered will dated 24.3.90 as being illegal and invalid and subsequently in the year 1990 an application for amendment of the plaint after deleting the earlier averments in the plaint to the effect that defendant no.1 was displeased with the plaintiff and had continuously been threatening the plaintiff that he will execute a will or sell in favour of his elder son and  will deprive the plaintiff of all his rights, title and interest. It has further been submitted on behalf of the respondents that Article 59 of the Limitation Act prescribes limitation of three years for cancellation or setting aside an instrument or decree. A relief of declaration is sought under Section 34 of the Specific Relief Act and the plaintiff has incorporated the said relief in the plaint in the year 1994. The matter on the other hand was governed by Section 31 of the Specific Relief Act in so far as he should have claimed cancellation of will, it is very obvious that effort was made by the plaintiff to deprive the State of its lawful court fee by seeking relief of declaration and by not seeking substantial relief of cancellation. The amendment is not bonafide in view of the well-settled principle of law. It has further been submitted on behalf of the respondents that the revisional Court while considering the various judgments passed by this Court as well as the Apex Court has recorded a finding of fact that the application filed on behalf of the petitioner for amendment is the deleting of certain admissions made by the plaintiff and he wants to incorporate a new case.

I have heard the learned counsel for the petitioner and the counsel for the respondents and have perused the record. The revision court has recorded a finding of fact on the basis of consideration of various judgments of the Apex Court to the effect that the court should not be very liberal in granting prayer for amendment. It is now well settled that the amendment can be allowed at any stage but while making the amendment application, the applicant has to show that the rights of the parties are not finalized and the amendment sought was not in his knowledge at the time when the suit was filed. Unless and until the specific pleadings have been made, the Court should be very reluctant in allowing the amendment application. The revisional court has taken into consideration that by way of amendment certain admissions by the plaintiff-petitioner, he wanted to withdraw from the said admission and the same will change the nature of the suit. In my opinion, it is not permissible. The finding recorded by the revisional court is a finding of the fact and as there is no error apparent on the face of the record, there cannot be any interference by this Court under Article 226 of the Constitution of India.

In the result the writ petition is devoid of merit and is hereby dismissed. The interim order, if any stands discharged. There shall be no order as to costs.  

30.11.2005

V.Sri/-

W.P. No.42890 of 1999


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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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