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LAXMI PRASAD versus I

High Court of Judicature at Allahabad

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Laxmi Prasad v. I-A.D.J. Mau And Ors - WRIT - C No. 505 of 1999 [2005] RD-AH 6899 (5 December 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

COURT NO.26

CIVIL MISC. WRIT PETITION NO.505 OF 1999

Laxmi Prasad

versus

I Addl. District Judge, Mau and others

-------

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order of the appellate authority passed by I Addl. District Judge, Mau dated 9.12.1998 by which application for amendment 8 Ka and 12 Ka filed by the defendant-petitioner has been rejected.

The brief facts of the case are that a suit for permanent as well as prohibitory injunction was filed by the plaintiff - respondents against the defendant from interfering in possession of the land shown by ABCD in the plaint map and not to obstruct the lane of 5' by making any construction. Further relief in the plaint was sought for easementary right over the land in dispute. The defendant-petitioner denied the allegations made in the plaint and it has been stated that the plaintiff-respondents have got no right in the property in dispute. The aforesaid land is always being used as the property of the defendant-petitoner. There was a registered family partition in which a map was drawn and the house of which land ABCD is part had gone to the respective shares of the co-sharers in the family partition. Due to the construction of the safety tank, the eastern portion of the northern wall of the house fell down and for the security purpose a wall was raised and as soon as the permission is obtained from the competent authority for the construction of the safety tank, the wall which was earlier fell down, would be made pucca. Initially the prayer for temporary injunction was rejected. The defendant-petitioner filed a document of family partition, which was written as dated 18.5.1956 in place of 11.7.1956. Though the document was filed but in the written statement the date has been mentioned as 18.5.1956. The trial court disbelieving the version of the defendant-petitioner has recorded a finding that there is no such document dated 18.5.1956 and as such decreed the suit in favour of the plaintiff-respondents. The defendant-petitioner aggrieved by the aforesaid judgment and decree has filed an appeal and moved an application for amendment in the written-statement before the appellate authority in Civil Appeal No.15 of 1997. The only prayer in the amendment application was that in place of 18.5.1956 the date may be treated to be changed as 11.71956. This was the only amendment of date because it was by mistake that the date in the written statement could not be checked and the suit was proceeded on the said basis.

An objection was invited by the plaintiff-respondents. It was stated in the objection that in the written statement the date of registered partition deed has been mentioned as 18.5.1956 and the cross-examination was conducted and it was not brought to the notice of the Court at the time of pendency of the suit that the date of family partition has been wrongly mentioned. The trial court was justified in disbelieving the said statement on the ground that no document-dated 18.5.1956 alleged to be family partition exists. The appellate authority without considering the aforesaid contention has rejected the application for amendment vide its order dated 9.12.1988.

It has been contended on behalf of the petitioner that it is well settled that the amendment can be allowed at any stage even before the Apex Court but the person who has approached the Court by way of amendment application has to show the bonafide and has to submit before the Court that he was not aware regarding the fact which is being mentioned in the amendment application. But the trial court has not considered the fact that the nature of the suit and rights of the parties were not going to be affected by the said amendment. It was only a correction of date of a document in the written statement, therefore, the amendment should have been allowed. The appellate authority has wrongly rejected the application for amendment.

On the other hand the counsel for the plaintiff-respondents has submitted that the amendment sought in the written statement tried to be made at the revision or appellate stage, the admission made by the defendant-petitoner in the statement, will amount to denial of the admission made earlier and on the basis of that the valuable right so accrued to the plaintiff-respondent cannot be allowed to be taken away. As the total case of the defendant petitoner was based on the registered family settlement dated 18.5.1956, the whole evidence veered round this admission. It has further been stated that as the defendant-petitioner has admitted the registered partition dated 18.5.1956 and has denied any other deed, therefore, allowing the amendment application at this stage will be elimination of the admission made by the defendant-petitioner.

I have heard the learned counsel for the petitoner and the respondents and have perused the record. The trial court on the basis that there is no proof or document to show that any family partition has been arrived in the family of the defendant-petitioner on 18.5.1956, though the said registered partition -deed was part of the record, and the trial court had disbelieved the version of the defendant-petitioner only on the ground that the basis of right of the parties is of a registered family partition dated 18.5.56 but no document exists, therefore the petitioner is not able to prove regarding the existing of any document dated 18.5.56. The petitioner-defendant has clearly stated in the application of amendment that by mistake in the written-statement the date has been mentioned as 18.5.56 though it should have been dated 11.7.56. The judgment of the trial court is based only on the basis of the date mentioned in the written statement . Though in view of the various Apex Court judgments as well as of this Court if there is a mistake of date in a particular document in the written-statement, that cannot be said to be  ground for non suit a person. If an application for amendment is filed, then it will not affect the rights of the parties.  Admittedly, the family partition-deed was part of the record but the trial court has based its findings only on the basis of the date mentioned in the written-statement. The Trial court should have taken in to consideration the registered document, which was the part of the written-statement. The rejection of the application for amendment is also based on the fact that this will affect the rights of the parties. No finding has been recorded by the appellate authority that the application for amendment is an afterthought or deliberately the defendant-petitioner inspite of the fact of having the knowledge has concealed the said fact. The petitoner himself has alleged in the application supported by an affidavit that by mistake the date has wrongly been mentioned in the written-statement.

In view of the aforesaid fact, I find that the appellate authority has wrongly rejected the application filed on behalf of the defendant-petitoner by its order-dated 9.12.1998. Therefore, the order dated 9.12.98 is hereby set aside. The case is remitted back to appellate court for reconsideration of the application in the light of observation made above.  It is provided that the application for amendment shall be considered only on payment of cost of Rs.2,000/- payable to plaintiff-respondent.  

With these observations the writ petition is disposed.

5.12.2005

V.Sri/-  


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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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