Court No. - 37
Case :- WRIT - C No. - 31650 of 2017 Petitioner :- Ram Janam & 3 Others Respondent :- Commissioner Varanasi Division & 4 Others Counsel for Petitioner :- Anil Kumar Rai,Vishnu Singh Counsel for Respondent :- C.S.C.,Iqbal Ahmad,Manoj Kumar Yadav
Hon'ble Siddhartha Varma,J.
Rejoinder affidavit filed today be kept on record.
A suit was filed by the respondent no. 3 claiming to be a co-sharer with the other defendants in the suit. On 27.05.2015 the following issues were framed:-
1- क्यया वविवियावदित सम्पतत्ति ममौरुससी सम्पतत्ति हहै और वियादिसी उसकया सहवहस्ससेदियार हहै?
2- क्यया मया0 न्ययाययालय कको वियादि पत्र सननसे कया कसेत्रयातधिकयारसी हयातसल हहै?
3- क्यया मक दिमया दिफया 34 भ0 रया0 अतधि0 ससे बयातधित हहै?
Thereafter, the petitioners, who were defendants No. 1, 2, 3 & 4 in the suit, filed an amendment application by which it was alleged that the plaintiff Ramsevak was not the son of Sunder but was the grand son of Harkhan and the amendment application was rejected by the trial Court as also by the Revisional Court saying that it was being brought after the issues were framed and the amendment was also changing the nature of the suit.
Learned counsel for the petitioners submitted that if the relief clause of the plaint is seen, the plaintiff had claimed co-ownership with the other defendants and, therefore, it was admitted to the plaintiffs that the property was in the co-ownership of the plaintiff and the defendants. Where in the family of the common ancestor Ramphal, the plaintiffs and the defendants were situate was yet to be determined upon the adjudication of the issue no. 1. Learned counsel relying on 2006 (2) AWC 1886 (Rajesh Kumar Aggarwal & Ors Vs. K.K. Modi & Ors.) submitted that the merits of the case had not to be looked into when the amendment application was being decided. He submitted that in fact the real controversy had to be adjudicated upon and the Court had to see whether the amendment would help to decide the controversy involved in the case.
Learned counsel for the plaintiff/respondent no.3 Ramsevak, however, submitted that shares would change if the pedigree is allowed to be changed by the amendment.
Having heard learned counsel for the parties, I am of the view that an amendment can be brought at any stage. The issue, whether the plaintiff was a co-sharer, would be decided when issue no. 1 is decided. Whose son the plaintiff is would also be decided.
Under such circumstances the order is quashed and the amendment that the petitioner prayed for is allowed. As and when the issues are decided it would definitely be decided as to which branch the plaintiff belonged to. The amendment of the written statement does not mean that the pedigree as has now been given by the defendant was to be believed as gospel truth.
The writ petition is allowed.
Order Date :- 27.7.2018Mohit Kushwaha