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Smt. Rehana Begum And Others v. Sabir Ali And Others - WRIT - C No. 26275 of 2006 [2006] RD-AH 10026 (22 May 2006)


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Court No. 23

Civil Misc. Writ Petition No. 26275 of 2006

Smt. Rehana Begum & others Vs. Sabir Ali & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

The plaintiffs-petitioners originally, have come with a case that the property in question originally belongs to Mohd. Sayeed after whose death it devolved upon his son-Sabir Ali, the husband of the petitioner, two daughters and widow. It is further pleaded that since the widow and two daughters of the deceased-Mohd. Sayeed had surrendered their rights in the property to Sabir Ali, he became  the sole owner of the property. Since this fact of surrender of right was later on found to be incorrect by the petitioners, the occasion arose to move the court with a prayer for amendment under Order VI, Rule 17 C.P.C.  That prayer has been rejected by the trial court on the ground that the fact, which is sought to be brought in the pleadings of the plaint by way of amendment, was already within the knowledge of the petitioners and therefore, such amendment should not be allowed. The revisional court has also concurred with that finding of the trial court and dismissed the petitioners' revision.

Learned counsel for the petitioners contends that may be that the fact was within the knowledge of the petitioners in the suit but if some wrong fact has been given due to misconception, the plaintiffs do have a right for its rectification by way of amendment and they can move the court for that purpose. The trial in the suit has not yet commenced and the issues have not been framed. The temporary injunction application is pending disposal and therefore, there was no justification for rejection of said amendment application.

Learned counsel for the respondents, while replying to the aforesaid submissions of the petitioners, has only emphasised that the petitioners are enjoying the exparte injunction granted by the trial court and that should be expedited. Learned counsel for the respondents has further submitted that the facts, which have already come in the plaint, may not be subsequently amended, if it amounts to certain admission of interest of the contesting defendants.

From the aforesaid facts and circumstances, I find that the proposed amendment can in no way, be treated as to the effect of the withdrawal of any admission of the plaintiffs regarding any plea taken by the defendants in their written statement. It is simply by way of correction of certain wrong fact, which has been mentioned in the plaint and its correction should have been reasonably allowed by the courts below. Accordingly, the petition is allowed and the impugned orders of the courts below dated 13.09.2005 (Annexure No. 4) and 4.4.2006 (Annexure No. 5) are hereby quashed. The trial court would again take up the amendment application and its objections and disposed of the same after hearing the parties. The temporary injunction matter shall also be expedited and disposed of by the last week of July, 2006.




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