Court No. - 36
Case :- WRIT - C No. - 27092 of 2013 Petitioner :- Suresh Respondent :- State Of U.P. Thru Secy. And 8 Others Counsel for Petitioner :- R.J. Alvi,Jadu Nandan Yadav,Rajiv Kumar Yadav Counsel for Respondent :- C.S.C.,A.K.Singh,M.K. Dwivedi
Hon'ble Mrs. Sunita Agarwal,J.
The amendment application no. 40820 of 2016 has been filed with the prayer to convert the present writ petition into a petition under Article 227 of the Constitution of India in view of the judgment of the Apex Court in Radhey Shyam and another vs. Chhabinath and others reported in (2015) 5 SCC 423.
The amendments are formal in nature.
Learned counsel for the petitioner has made out a case for grant of amendment. The amendment application is, thus, allowed.
Necessary incorporation be made in the present petition within one week.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the orders dated 21.1.2012 and 8.8.2012 passed by the Courts below in a proceeding under Order 6 Rule 17 C.P.C. arising out of Original Suit No. 1592 of 1987 (Dhirendra & others vs. Suresh & others).
The petitioner is defendant no. 1 in the said suit.
By means of the orders impugned, the plaintiffs' amendment application seeking amendment of plaint (paper no. 311-Ka-2), had been allowed.
The trial court has recorded a categorical finding that the proposed amendments would not change the nature of the suit and moreover, are necessary for proper adjudication of the controversy between the parties and to prevent multiplicity of proceedings.
These findings returned by the trial court as affirmed by the revisional court are sought to be challenged in the present petition with the assertion that the proposed amendments are highly belated and the plaintiffs cannot be allowed to bring new facts by way of amendment after 24 years of the institution of the suit. Aid has been taken to the proviso to Order 6 Rule 17 C.P.C. to state that the belated amendments cannot be allowed.
Learned counsel for the respondent no. 1, however, defends the orders impugned for the reasoning given therein.
Having heard learned counsel for the parties and perused the record, on a pointed query made by the Court, it is informed by the learned counsel for the petitioner that the suit was at the stage of plaintiff's evidence and on account of pendency of the present petition it has not been proceeded beyond that stage.
Further from a perusal of the plaint, written statement and the amendment application, it is evident that the plaintiff sought amendment by addition of three paragraphs i.e. '6ka', '6kha' and '6ga' in paragraph '6' of the plaint.
The unamended paragraph '6' and the proposed amendments read as under:-
Unamended Para 6:-
“¼6½ ;g fd izfroknhx.k vkjkth la0 48019 tfj;s cSukek dqN Hkwfe gkfly djds ml ij viuk fuekZ.k dk;Z djus dh rS;kjh es gS vkSj osd olhl ljdlh vjlk nks jkst ls oknhx.k ds vkjkth la0 480121&17 es eqegtk gYQ ,-ch-lh-bZ-,Q- g* c UkD'kk utjh tSy es Hkh cLdj cfu;kn [kksnus o rkehj djus dh /kedh nsrs gS ftldk mudks gd og rgdku gkfly ugh gSA ¼6v½ i'kqr/kj ns[kh tk; %& ;g fd izfr oknhx.k la0 2 o 2 ,oa xus'k e`r izfroknh la03 us okn nkf[kyk nkok nkSjku eqdnek cjkg tcjnLrh fookfnr vkjkth ds c<+dj ,d nhoky lrg tehu la02 Qqv mWqph] :i] g:i] ,e-,- eqUntZ uD'kk utjh tSy fufeZr dj fy;k gS] ftldk mudks gd [k gLrk gdkd gkfly u ugh gSA”
Proposed Amendment of paragaraph 6:-
“fooj.k la'kks/ku 1%& ;g fd okni= dh /kkjk dsdsok ethn /kkjk;s cr~kj 6d rk 6x fuEu rkSj ij ntZ djus dh btktr gksosA 6d%& ;g fd izfroknh la[;k 1 o 2 ,d l['k ghjk iq= 'kadj ls fookfnr vkjkth la[;k 480 us pdnj 7 fM0 jdck dk cSukek vius firk fcgkjh }kjk ysuk tkfgj djrs gS rFkk eq0 xus'k izfroknh la[;k 2 tks mlds ikfjlku izfri{kh la[;k 3@1 rk 3@5 fookfnr vkjkth la[;k 480 jdck 7 fM0 dk cSukek ysuk tkfgj djrs gS rFkk mDr cSukek tkap ds vk/kkj ij fookfnr Hkwfe ,]c],Q] eqUntZ ojt tjh okni= es cjkg tcjnLrh fuekZ.k djus dk /kedh nsrs gSA 6[k %& ;g fd dnkfi fookfnr Hkwfe v{kjkafdr ,]c]bZ],Q o pdnj la[;k jdok 17 fM0 tks fookfnr vkjkth la[;k 480 jdck 57 fM0 dk nf[kuh Hkkx gS] rFkk ftls okni= dh /kkjkvks es 480@2 jdck 17 fM0 ls lacaf/kr fd;k x;k gS dHkh dksbZ okLrk ljs dkj ghjk iq= 'kadj ls ugh jgk vkSj u ml ij dHkh Hkh ghjk iq= 'kadj dk vf/kdkj Fkk v/;klu jgk vkSj ghjk yky iq= 'kadj yky dks fookfnr vkjkth la[;k 480 jdck 57 fM0 ds nf[kuh Hkkx v{kjkafdr ,]ch]bZ],Q] jdck 17 fM eqUnjtk okn i= ij ghjk iq= 'kadj dk dHkh dksbZ vf/kdjh ;k v';klu jgk vkSj rFkk dfFkr cSukek tkr ufoLrk ghjk iq= 'kadj ds vk/kkj ij izfroknhx.k dks dksbZ gd ;k blrgdkd fookfnr Hkwfe v{kjkafdr ,]ch]bZ],Q] pdnj jdck 17 fM0 eqUnjtk okni= es izkIr gqvk FkkA 6x%& ;g fd okLrfodrk ;g gS fd fookfnr vkjkth la[;k 480 dk lEiw.kZ jdck 57 fM0 dk rFkk fookfnr vkjkth la[;k 480 us pdnj jdck 40 fM0 tkfuc mRRkj ghjk iq= o 'kadj xSj Qjhd dh Hkwfe /kj ls dh vkjkth jgh rFkk ghjk iq= 'kadj us fookfnr vkjkth la[;k 480 es lcls mRrj rjQ jdck lk<s 3 fM0 dk cSukek fnukad 12-1-07 dks n'kjFk iq= eqUuh yky xSj Qjhd dk rgjhj nh jftLVªh fd;k ftles ekStwnxh es mRrj rjQ egs'k 'akdj xSj jQhd dh tehu tkfgj fd;k Fkk] rFkk iwjc rjQ viuh tehu tkfgj fd;k Fkk] rFkk mlds ckm ghjk us n'kjFk ds cSukek 'kqnk Hkwfe ds lVs nf[ku lqfer nsoh rFkk iwjc rjQ viuh tehu tkfgj fd;k Fkk] rFkk mlds ckn ghjk us n'kjFk ds cSukek lqnk Hkwfe ds lVs nf[ku lqferk nsoh dks fn0 16-11-77 dks vkjkth la[;k 480 es lk<s 3 fM0 jdck cSukek fd;k vkSj mDr cSukek es iwjc rjQ dh pkSgnh es Hkh viuh gh tehu gksuk tkfgj fd;k gS ftlls tkfgj gks fd ghjk iq= 'kadj fookfnr vkjkth la[;k 480 es jdck 40 fM0 tkfuc mRrj rjQ dk gh lLokeh jgk dnkfi ghjk iq= 'kadj ls fookfnr vkjkth v{kjkafdr ,]c]bZ],Q eqUntZ uD'kk utjh okni= ls dksbZ okLrk ljksdkj ugh jgk vkSj u gh tfj;s rFkk dfFkr cSukek ufoLrk ghjkiq= 'kadj izfroknhx.k dks fookfnr Hkwfe ,0c]bZ],Q es dksbZ LoRrrk ;k v/;klu izkIr gqvk ;k gSA”
A further perusal of the plaint averments indicates that the plaintiff sought injunction claiming his exclusive ownership over the suit property and had categorically pleaded that the defendants had no right, title or interest in the same. The cause of action for filing the suit arose on account of the fact that the defendants proceeded to raise certain constructions over the suit property.
Further from a perusal of the written statement, it is evident that the defendants, in paragraphs '10', '11' and '12', had pleaded that their father had purchased the suit property from one Hira son of Shankar and they are in possession since the life time of their father.
Paragraphs 10, 11 and 12 of the written statement are also relevant to be reproduced as under:
10- ;g fd ghjk iq= 'kadj us vkjkth uEcj 480 ds 17 fM0 jdcs dk cSukek firk ge izfroknhx.k eqleh fcgkjh yky iq= jk/kk fd'ku dkukSfM;k ds gd es rkjh[k 4-8-78 dsk djds jftLVMZ dj fn;k okn oQkr firk ge eqnkysgqe tehu utkbZ ij dkfct n[khy gSA
11- ;g fd ghjk etdwj ls ge izfroknhx.k ds firk ds cSukek fy[kk tkus ds ckn vkjkth utkbZ uEcj 480 ds 170 fM0 dk cSukek xus'k eqnkysg ds gd es djds mldks Hkh dkfct n[khy djk fn;kA
12- ;g fd ge izfroknhx.k ds firk us lu 78 es gh vkjkth uEcj 480 dk 7 fM0 tehu dsk tfj;s rhu rjQ cqfu;kn [kksnokdj mles ckgj nhokjh rkehj djk fn;k gS tks ekSds ij ekStwn gS vkSj jkes'koj yky ds edku ds lVs nhokj 3 fQV maph vc Hkh ekStwn gS ckdh rjQ tehu ds lrg rd gSA Thus, from reading of the original pleadings and the proposed amendments, it is clear that the plaintiff sought to add the pleading that the predecessor of the defendant i.e. Hira son of Shankar had no right, title or interest in the suit property and he had parted away with his interest in the same much earlier and, as such, no right had survived with him, which would have been transferred in favour of the predecessor of the defendants.
These amendments, in the opinion of the Court, are necessary in order to reach at just a conclusion and to avoid multiplicity of the proceedings, inasmuch as, the dispute being raised in the present petition is with regard to the right of the plaintiff viz-a-viz the defendants in the suit property and the issues in this regard have been framed by the Court below on the pleadings of the parties. The suit is at the stage of plaintiff's evidence and as such no prejudice would be caused to the defendants as they would get an opportunity to rebut the assertions of the plaintiff and bring evidence to establish their case of being owner in possession of the suit property.
However, considering the fact that the proceedings of the suit remain pending for long on account of pendency of the present petition, a liberty is granted to the petitioner/defendant to file his additional written statement to the amended paragraphs of the plaint within a period of four weeks from today. The trial court shall grant shortest possible time to the plaintiff to file his replication to the additional written statement, if any.
In any case, the trial court shall proceed with the suit after giving due opportunity to the defendants to rebut the allegations and bring evidence before the Court .
Taking note of the fact that the suit is critically old having been filed in the year 1987, it is provided that an endeavour shall be made by the court below to decide the suit, as expeditiously as possible, preferably, within a period of one year from the date of submission of certified copy of this order, without granting any unnecessary adjournment to any of the parties.
Subject to the above observations and directions, the present writ petition is disposed of.
Order Date :- 23.1.2019 Brijesh (Sunita Agarwal, J.)