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AJEET KUMAR GUPTA versus ADDL. DISTT. JUDGE & ANR.

High Court of Judicature at Allahabad

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Ajeet Kumar Gupta v. Addl. Distt. Judge & Anr. - WRIT - C No. 31165 of 2004 [2006] RD-AH 11474 (14 July 2006)

 

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. 25

Civil Misc. Writ Petition No.   31165 of 2004.

Ajeet Kumar Gupta, Moradabad.   .... Petitioner.

Versus

                    The Addl. District Judge, Moradabad and another ... Respondents.

Hon'ble Rajes Kumar, J.

By means of present writ petition, the petitioner is challenging the order-dated 25.05.2004 passed by the Additional District Judge Court no. 4, Moradabad in Civil Revision no. 7 of 2004.

The brief facts of the case are that the petitioner claimed to have entered into an agreement of sale on 19.8.1992 for the land in dispute on a consideration of Rs.1 Lac with the respondent no. 2 and in respect of which, a registered agreement to sale has been executed.  A sum of Rs.40,000/- has been accepted as the earnest money.  On non execution of the sale-deed, a Suit no. 575 of 1997 was filed on 26.5.1997 for specific performance of contract against the respondent no. 2 after accepting the remaining sale consideration of Rs.60,000/-.  Subsequently, petitioner filed amendment application on 28.3.2003 which is Annexure-3 to the writ petition, by which, petitioner sought amendment in the boundary shown in the plaint on the ground that the respondent has changed the boundary of the property in dispute.  The Additional Civil Judge (Sr.Div.), Court no. 1, Moradabad vide its order dated 22.12.2003, allowed the application on the costs of Rs.200/- and directed the petitioner to incorporate the amendment within seven days.  The respondent no. 2 filed  Civil Revision before the Additional District Judge, Court no. 4, Moradabad.  The said Civil Revision was allowed by the impugned order, by which, the order of Additional Civil Judge (Sr. Div.), Court no. 1, Moradabad has been set aside and the amendment application has been rejected.  The Additional District Judge, Court no. 4, Moradabad held that by the change of boundary of land in dispute, the nature of suit would be changed.

Heard Sri Manoj Kumar, learned Counsel for the petitioner and Sri Kshitij Shailendra, learned Counsel for the respondent nos. 1 and 2.  

Counter and rejoinder-affidavits have been exchanged.  With the consent of both the parties, the petition is disposed of.

Learned Counsel for the petitioner submitted that by means of amendment change in the boundary of the land in dispute has been sought, on account of subsequent development which occurred due to the sale of adjacent plots etc.  He submitted that by change of boundary in the land in dispute, the nature of suit would not be changed.  He further submitted that while considering the application for amendment, the court should not go into the correctness or falsity of the case in the amendment.  He submitted that by the amendment, nature of the suit namely plea of specific performance to execute the sale-deed would not be changed.  He submitted that this Court in various decisions held that the amendment to the pleadings should be liberally allowed.  In support of his contention, he relied upon the decision of Apex Court in the case of Rajesh Kumar Aggarwal and others versus K. K. Modi and others reported in 2006 (2) CCC 177 (SC).  Learned Counsel for the respondent submitted that in case if the boundary of the land in dispute are allowed to be changed, the nature of suit would be changed, thus, it is not permissible.  

I find substance in the argument of learned Counsel for the petitioner.  If on account of subsequent development, boundary of the land in dispute is changed and by the amendment, if such change is sought by the plaintiff in the plaint, in my opinion, nature of suit would not be changed.  I do not find any substance in the argument of learned Counsel for the respondent that by the amendment, nature of the property in suit would be changed,  in case, if the amendment is allowed and amendment in the plaint is not possible unless instrument should be rectified as required under Section 26 of the Specific Performance Act.  The Apex Court in the case of Rajesh Kumar Aggarwal and others versus K. K. Modi and others (supra) held  that primary duty of Court is to decide whether such an amendment is necessary to decide the real dispute between the parties, Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both the parties and to sub serve the ends of justice.  While considering an application for amendment, the court should not go into the correctness or falsity of the case in the amendment.  The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice.  Merits of the amendment sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer.

For the reasons stated above, the writ petition is allowed.  The order dated 25.05.2004 is set aside and the order of the Additional Civil Judge (Sr. Div.), Court no. 1,  Moradabad is restored.  Both the parties are directed to appear before the trial court on 21.08.2006 alongwith the Certified copy of the order.  The trial court will allow the petitioner to incorporate amendment within a specified time and dispose of the matter expeditiously.

Dt:14.07.2006.

MZ/-


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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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