The Allahabad High Court while dismissing the petition said that the Order VI Rule 17 C.P.C confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just.
A Single Bench of Justice Prakash Padia passed this order while hearing a petition filed by Smt Neeta Agrawal.
The petitioner has preferred the petition under Article 227 of the Constitution of India with the prayer to annul Judgments and orders dated 06.03.2010 passed by Additional Civil Judge (Senior Division) Allahabad as well as the order dated 30.11.2015 passed by Additional District Judge, Allahabad insofar as it relates with the prayer no (a) of the proposed amendment sought which has been rejected by the trial court and affirmed by the revisional court by means of the impugned orders and substitute the same by its own judgment allowing the amendment application in toto or direct the trial court to decide the amendment application afresh in the light of observation/ direction of the Court.
Facts as contained in the petition are that the property bearing house situated at Darbhanga Colony, District – Allahabad of which the petitioner is sole owner and is in possession. The house had been constructed over the Darbhanga Castle compound in District Allahabad of which one Chowdhary Labh Singh was the recorded owner.
Labh Singh through his will deed dated 29.02.1966 divided the said house in two equal portions bequeathing the same in favour of his two sons through will deed. Northern 1/2 portion of said house was allocated in favour of Surendra Jeet Singh Rekhi/ defendant respondent no 3 and the southern 1/2 portion was allocated to Nirmal Jeet Singh, his other son.
After the death of Chowdhary Labh Singh the defendant/ respondent No 3 became the sole and absolute owner in possession over the northern half portion of House Darbhanga Castle Colony Allahabad total area 600 Square Yards (501.60 Square meters) out of which covered area was 302 Square Yards (252.47 Square Meters) and rest of area 298 Square Yards (249.13 Square Meter) was an open area.
The Nagar Nigam allotted House to the said house in the name of respondent no 3. The respondent no 3 became the absolute recorded owner of the house in question. The respondent no 3 executed sale deed of the house in question in respect of the area 430 Square Meters (514.39 Sq.) through registered sale deed dated 19.02.1994 in favour of the Plaintiff/petitioner.
Thus, the respondent no 3 sold the entire area of house Darbhanga Colony Allahabad by means of two sale deeds. Therefore, after execution of the aforesaid two sale deeds, though no area remained with the respondent No 3 even then he executed another sale deed of excess area 80 Sq Yards of House Darbhanga Colony Allahabad in favour of defendant/respondent no 1 through sale deed dated 19.07.1997.
It is argued that the aforesaid sale deed could not be executed by the respondent No 3 in favour of the respondent No 1 as the respondent No 1 was never in physical possession over any part of the house in question.
It is further argued that due to mistake in the sale deed dated 19.02.1994 executed in favour of petitioner, the eastern boundary was wrongly shown to be part of house Darbhanga Colony Allahabad after the execution of second sale deed dated 26.10.1994 and no area of house in question remained balance.
It is also argued that on 26.08.2000 and the defendants/ respondent no 1 and 2 tried to interfere in peaceful possession of the Plaintiff/ petitioner and Plaintiff/ petitioner filed Civil Suit being Original Suit.
In the aforesaid suit, the defendants/respondent no 1 and 2 filed their joint written statement along with counter claim on 22.11.2000. The respondent no 3 also filed his separate written statement taking a different stand but failed to justify the area alleged to be sold in favour of respondent no 1.
It is argued that the petitioner filed replication to the aforesaid written statements filed by the respondents denying the contents of the written statement.
In the meanwhile, an amendment application was filed by the Plaintiff/ petitioner on 01.10.2009 which was marked as Paper seeking certain amendments in the plaint as per provisions contained under Order 6 Rule 17 of the C.P.C, the amendment was opposed by the respondent nos 1 and 2 only and they filed their objection on 05.10.2009.
The trial court vide its order dated 06.03.2010 partly allowed the amendment application and rejected the prayer seeking amendment in Eastern boundary of the disputed house.
Aggrieved by the aforesaid order, the petitioner preferred Civil Revision in the Court of District Judge under section 115 C.P.C on 26.03.2010. The Revisional Court rejected the same vide its order dated 30.11.2015.
A counter affidavit has been filed by Ashish Kumar Singh, counsel for respondent Nos 1 & 2. It is argued that the total area of house was 600 sq yards mentioned in the sale deed map and eastern open area was not mentioned in the sale deed map and in the sale deed map, it is specifically stated that open area of which respondent No 3 was owner is in the eastern side.
It is further stated in the counter affidavit that the respondent No 3 having more area in the eastern side and the same was sold by him to the respondent No 1.
It is further argued that the land in dispute was purchased by the respondent No 1 and the amendment application was illegally filed by the petitioner after the expiry of nine years of the filing of the suit. By moving the aforesaid amendment application, the petitioner is trying to linger on the proceedings.
It is further argued that absolutely a frivolous case has been carved out by the plaintiff-petitioner by moving amendment application. Hence, the amendment application by which an amendment is sought in the prayer of the suit was rightly rejected by the Courts below.
“In this view of the matter, I am of the opinion that in case there is no proper pleading to support the relief as claimed in the petition, then the respondent has no opportunity to resist or oppose such relief, and if the court considers and grant such relief, it will lead to miscarriage of justice.
In view of the aforesaid, the Court is of the opinion that the petition is liable to be dismissed on both the grounds namely the amendment filed by the petitioner will change the nature of the case and secondly there is no pleadings whatsoever made by the petitioner in the entire petition while challenging the aforesaid orders. Further nothing has been stated in the amendment application nor in the petition regarding the latches in filing the amendment application since the suit was filed in this case in the year 2000 and amendment was sought by him in the year 2009.
In this view of the matter, the Court is of the opinion that the petition is without any merit, the same is liable to be dismissed”, the Court observed while dismissing the petition.
“It further reveals from perusal of the record that the Civil Suit which was filed by the plaintiff-petitioner is pending consideration before the Trial Court since last 23 years. Written statements have already been filed by the parties.
In this view of the matter, the Court is of the opinion that the Trial Court be directed to decide the aforesaid suit most expeditiously and positively within a period of six months from today strictly in accordance with law and without being influenced with any observations made by this Court in this judgement”, the order reads.