Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 2928 of 2019 Petitioner :- Bal Mukund Respondent :- Amar Nath (Since Deceased) And 10 Others Counsel for Petitioner :- Divakar Rai Sharma Counsel for Respondent :- Lalit Kumar
Hon'ble Vivek Kumar Birla,J.
Heard Sri Divakar Rai Sharma, learned counsel for the petitioner and Sri Lalit Kumar, learned counsel appearing for the caveator-respondents.
Present petition has been filed for setting aside the order dated 8.3.2019 passed by the Additional District Judge, Moradabad in Civil Appeal No. 14 of 2012 (Bal Mukund vs. Subhash Chandra and others).
By the impugned order the amendment application filed under Order 6 Rule 17 CPC paper no. 127-Ga has been rejected by the appellate court on the ground that the same cannot be allowed as the facts were in his knowledge earlier and the same were not raised before the trial court. The application has been filed to delay the proceeding.
Submission of learned counsel for the petitioner is that the application filed by the petitioner under order 41 Rule 27 CPC for taking the additional evidence on record has already been accepted and serious prejudice would be caused in case the amendment is not permitted as the same relates to the additional evidence already accepted. He further submits that the amendment can be accepted at any stage and time and once the additional evidence is accepted, the amendment should have been allowed.
Per contra, Sri Lalit Kumar, learned counsel appearing for the caveator-respondents submits that the amendment raising factual controversy at the appellate stage cannot be permitted and the same is liable to be set aside. He further submits that amendment is being sought to be included in pleadings by means of this amendment, which cannot be permitted at this stage and the same has been filed to delay the proceeding. He has placed reliance on judgments in the cases of Jamuna Prasad Singh vs. IVth Additional District Judge, Faizabad and others 1998 (1) ARC 499, Sant Ram Agarwal vs. Civil Judge, Mohanlalganj, Lucknow and others 1993 (2) ARC 559, Dinesh Kumar and another vs. District Judge, Raibareli and others 2012 (3) ARC 101 and Shamim Ul Hasan vs. Nadeem and another 2016 (1) ARC 69.
I have considered the rival submissions and have perused the record.
After hearing learned counsel for the parties and on perusal of record I find that it is not in dispute that certain documents in some earlier litigation of 1997 have been accepted on record by the appellate court as additional evidence, however, I also find that the stand has also been taken by the defendants that they are the co-owners of the property in question. The trial court decided the suit by holding that the plaintiff is in possession through some registered sale deed. All such facts were already before the trial court and the appeal was filed in the year 2012, whereas this amendment application was filed after four years only on the advise of the counsel.
In such view of the matter, I do not find any good ground to interfere in the order impugned herein.
Present petition is devoid of merits and is accordingly dismissed.
Order Date :- 30.4.2019 Lalit Shukla