Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 5256 of 2019 Petitioner :- Kirani Singh 2 Others Respondent :- Gyan Singh Sharma And 5 Others Counsel for Petitioner :- Ashok Kumar Singh Counsel for Respondent :- Himanshu Tiwari,Rajesh Srivastava
Hon'ble Manoj Kumar Gupta,J.
Supplementary affidavit filed today is taken on record.
The petitioner feeling aggrieved by order dated 31.05.2019 passed by appellate court rejecting the Application 34-Ka for amendment of the plaint, has filed the instant petition.
The amendment sought is for substituting the unit of measurement in the plaint map from Gatta to Feet. According to the petitioners, by inadvertence, the length and width of the suit property is specified in Gatta though there is no such unit of measurement in vouge. The suit was for permanent injunction and demolition of constructions existing over it. The same was dismissed on 22.11.2016.
The appellate court has rejected the amendment application observing that similar amendment was sought by the petitioner during pendency of the suit but it was rejected by the trial court and thereafter, by the revisional court. The petitioner filed petition under Article 227 of the Constitution bearing number 1893 of 2015 challenging the order of the trial court and the revisional court, rejecting the amendment application. The petition was dismissed by this Court by order dated 01.05.2015 but it was left open to the petitioner to challenge the order rejecting the amendment application alongwith the final judgment. Thus, all that was made open was to raise such plea in appeal but this would not entitle the appellant to file a fresh amendment application. The court has also observed that the amendment which is being sought had been in knowledge of the petitioner and his counsel since the very beginning. In case, the amendment is allowed, it will result in not only change of the Unit but the suit property itself.
It is noteworthy that in place of 10 Gatta, the petitioners want it to be substituted by 27 Feet, meaning thereby, that 1 Gatta according to the petitioner is equivalent to 2.7 Feet. However, the western boundary which was shown in the plaint map as measuring 16 Gatta, is to be substituted by 60 Feet, the northern boundary from 9 Gatta to 130 Feet and southern boundary from 8 Gatta to 131 Feet. These figures cannot be arrived at if 2.7 is taken as multiplier for converting Gatta into feet. In fact, the dimension now sought to be incorporated will result in complete change of the dimensions of the suit land and not mere change of Unit as rightly observed by the appellate court.
Having regard to these facts, this Court is not inclined to interfere with the impugned order at this stage. However, the right conferred upon the petitioners by this Court by order dated 01.05.2015, while deciding Petition No.1893 of 2015 is kept intact. It shall be open to him to raise the plea regarding illegal rejection of the amendment application by the trial court at the time of final hearing in appeal.
The petition is dismissed subject to the aforesaid observations.
(Manoj Kumar Gupta, J.) Order Date :- 26.7.2019 Shashank/Atul