Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 2939 of 2018 Petitioner :- Syed Mazhar Abbas Naqvi Respondent :- Smt. Aliya Begum Counsel for Petitioner :- Iqbal Ahmad Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner.
Present petition has been filed for setting aside the order dated 30.3.2018 passed by District Judge, Moradabad, whereby amendment application 12-Ka dated 31.8.2017 in Civil Appeal No. 38 of 2017 has been rejected.
By the impugned order the amendment application filed by the defendant-petitioner herein, in appeal challenging the judgment and decree of the trial court has been rejected. The amendment application was filed on the ground that late Zamiluddin Haider Khan has left three sons behind him and the defendant- petitioner was not aware about the existence of third son Sri Shakeel Haider Khan and therefore, when he was informed about the same by some close relatives necessary amendment is being sought. It was stated in the application that this fact could not be included in the written statement and his counsel has advised to file amendment in the written statement. The suit was filed in the year 1998 by the plaintiff-respondent Smt. Aliya Begum that the suit property was gifted to her vide gift deed dated 26.10.1992 reduce in writing on 31.12.1992 by Smt. Khalida Begum w/o late Zamiludding Haider Khan and her sons namely Fareeda Ahmad Khan, Suhail Ahmad Khan and Shakeel Haider Khan. The relief claimed is for eviction of the defendant-petitioner. The suit was decreed on 13.4.2017. The case of the petitioner herein throughout before the trial court was that one agreement to sell was executed in his favour by late Zamiluddin Haider Khan and he was also put in possession. However, it is an admitted case that the sale deed was not executed and no suit for specific performance was filed by the defendant-petitioner for the purpose of execution of sale.
Submission of learned counsel for the petitioner is that the amendment is fully covered the provisions of Order 6 Rule 17 CPC and the amendment ought to have been allowed. Submission is that the existence of Shakeel Haider Khan is not being questioned and the petitioner is entitled for execution of sale deed pursuant to the agreement to sell by the legal heirs / legal representative of late Zamiluddin Haider Khan. It is further submitted that no alleged gift deed could have been executed without including Shakeel Haidar Khan and therefore, the amendment is to be allowed.
Learned counsel for the petitioner has placed reliance on judgment of Hon'ble Apex Court in the cases of Baldev Singh and others vs. Manohar Sigh and another 2006 (6) SCC 498 and Surender Kumar Sharma vs. Makhan Singh 2009 (10) SCC 626 in support of his arguments.
I have considered the submissions and have perused the record.
I find that during trial the stand of both the parties was categorical and clear. The defendant-petitioner is claiming that he is entitled for execution of sale deed by the legal heirs / legal representatives of late Zamiluddin Haider Khan pursuant to the agreement to sell. Under such circumstances, once he is claiming that he is entitled for execution of sale deed through legal heirs / legal representatives of late Zamiluddin Haider Khan why this fact was not agitated before the court below and in case this fact was left out from being included in the written statement why the amendment was not sought during trial. Further, I find that the court below has recorded that the source of information has not been disclosed and only vague assertion has been made that the petitioner came to know about the same through some close relatives.
I have perused the judgments cited by learned counsel for the petitioner. In both the cases the amendment was sought at the trial stage and not at the appellate stage. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17, which restricts the court from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. In the present case, the amendment is being sought in the written statement at the belated stays.
On one hand the petitioner is claiming that he is entitled for execution of sale deed by the legal heirs / legal representatives of late Zamiludding but at the same time on the other hand he is claiming that he was not aware of one of the legal heirs i.e. third son of late Zamiluddin Haider Khan. The assertion does not inspire confidence.
In such view of the matter, I do not find any legal infirmity in the order impugned herein.
Present petition is accordingly dismissed.
Order Date :- 27.4.2018 Lalit Shukla