Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 4715 of 2019 Petitioner :- Bharath Respondent :- Shrimati Santoshi Devi And Another Counsel for Petitioner :- Amresh Kumar Tiwari,Pankaj Kumar Shukla
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner.
Present petition has been filed for setting aside the order dated 30.5.2018 passed by Additional District Judge, Room No. 8, Deoria in Revision No. 8 of 2017 as well as order dated 15.11.2016 passed by Additional Civil Judge (J.D.), Room No. 20, Deoria in Suit No. 1216 of 2005 (Rameshar and another vs. Shrimati Santoshi Devi).
By the impugned order dated 15.11.2016 the trial court has rejected the amendment application filed by the plaintiff- petitioner under Order 6 Rule 17 CPC seeking amendment regarding death of Mahboob, who died on 2.5.1989 and widow of Mahboob, namely, Maina Devi did not receive any share in the property. This application was rejected by observing that all such facts were existing at the time of filing of the suit in the year 2005 and the suit is at the hearing stage. The revision filed by the plaintiff-petitioner was also rejected.
Stamp Reporter has reported laches of 240 days in filling the present petition.
Challenging the said orders, learned counsel for the petitioner submits that the amendment could have been allowed at any stage and the orders have been passed without perusing the documentary evidence in the matter. The death was registered in the year 2015 and therefore, the orders are liable to be set aside and the amendment is liable to be allowed. In support of his argument learned counsel for the petitioner has placed reliance on judgments of Hon'ble Apex Court in the cases of Varun Pahwa vs. Renu Chaudhary AIR 2019 SC 1186, Mahila Ramkali Devi and others vs. Nandram (dead) through Legal Representatives and others) 2015 (13 (SCC) 132 and Mohinder Kumar Mehra vs. Roop Rani Mehra and others 2018 (2) SCC 132.
I have considered the submissions and have perused the record.
On facts of the case I find that the aforesaid judgments are distinguishable in nature inasmuch as in the present case the amendment application has been filed at the time of hearing on the advice of his counsel, whereas the facts are that the suit was filed in the year 2005 and the factum of death of Mahboob on 2.5.1989 is being alleged by seeking amendment in the year 2016. The revisional court's order further reflects that after death of Mahboob names of necessary persons were carried out in revenue records in the year 2003 and even this date is also prior to the filing of the suit.
In such view of the matter, the amendment application was clearly hit by the provision of Order 6 Rule 17 CPC. I do not find any legal infirmity in the orders impugned herein.
Present petition is devoid of merits and is accordingly dismissed.
Order Date :- 30.5.2019 Lalit Shukla