Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8037 of 2018 Petitioner :- Hanuman Katiyar Respondent :- Additional District Judge Court No 1 Kanpur Nagar And Another Counsel for Petitioner :- Saurabh Srivastava Counsel for Respondent :- Manish Tandon
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record. The present petition is directed against the order of rejection of the Amendment Application (Paper No 37-C/2) filed by the appellant in Civil Appeal No. 09 of 2018 (Hanuman Katiyar Vs. Probir Kumar Sen).
By means of the said amendment application, the petitioner seeks to add Paragraph 2-A in the plaint and also to amend the statement in Paragraph 3 and other paragraphs of the plaint by inserting the words "or his said brothers" after the word "defendant".
The Court below has categorically recorded a finding that the plaintiff has come out with a clear case that he had inherited the tenancy in the suit property from his deceased father to whom the disputed property was let out by the father of the defendant. The categorical stand in Paragraph '3' of the plaint that the tenancy is quite old and the rent of the accommodation is Rs. 25 per month and the sole defendant had never issued rent receipts thereof and now is trying to illegally and forcibly evict the plaintiff from the said accommodation with the aid of some anti-social elements.
By means of the proposed paragraph 2-A, it is sought to be contended by the plaintiff that apart from the defendant his other three brothers had also inherited the suit property and they are the co-owners/co-landlords of the suit property. It is another brother of the defendant namely, Dilip Kumar Sen who was realizing rent of the disputed accommodation on behalf of the defendant and other co-owners/co-landlords and as on the date of the filing of the amendment application, he is still realizing the rent of the said accommodation from the plaintiff.
These averments are sought to be added by the plaintiff after having lost before the Court of first instance which had turned down the said stand taken by the son of the plaintiff who had appeared in the witness box as PW-1.
This Court is, therefore, of the considered view that the proposed amendments in Paragraph 2-A are sought by the plaintiff in order to fill the lacunae and would result in retraction of the averments made in Paragraph '3' of the plaint. The submission of the learned counsel for the petitioner that the proposed amendments are only clarificatory in nature and would not change the stand taken by the plaintiff in the original plaint, is incorrect.
For the aforesaid, no infirmity is found in the order impugned. The present petition is accordingly disposed of.
Order Date :- 26.10.2018 Kamar