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IN THE HIGH COURT OF ALLAHABAD
Prakash Padia, J.
Smt. Neeta Agrawal – Petitioner
Versus
Smt. Shanti Rani Agrawal and Others – Respondents
Matters Under Article 227 No. - 220 of 2016
Decided On : 24-04-2023
Constitution of India,1950 - Article 227 - Property - Possession - Will deed - Petition are that property bearing house no. 129/Al situated of which petitioner is sole owner and is in possession - House no. 129 had been constructed over plot no. 33 District of which one was recorded owner through his will deed dated divided said house in two equal portions bequeathing same in favour of his two sons through will deed - Northern 1/2 portion of said house was allocated in favour defendant respondent no. 3 and southern 1/2 portion was allocated to his other son - After death ,defendant/respondent No.3 became sole and absolute owner in possession over northern half portion of House No. Allahabad total area 600 Sq. Yards out of which covered area was 302 Square Yards and rest of area 298 Square Yards (249.13 Square Meter) was an open area- Nagar Nigam allotted House No. To said house in name of respondent no. 3 - Respondent no.3 became absolute recorded owner of house in question - Respondent no. 3 executed sale deed of house in question in respect of the area 430 Square Meters through registered sale deed dated in favour of Plaintiff/petitioner - Whether plaintiff-petitioner has made out a case for amendment of his plaint, it is useful - Whether such amendment is necessary for the determination of real question in controversy - This is basic test which should govern the courts’ discretion in grant or refusal of amendment - Other important condition which should govern discretion of court is potentiality of prejudice or injustice which is likely to be caused to the other side. [Para 24]
Finding of Court: General principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to the plaint - It has no counterpart in principles relating to amendment of the written statement - Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement would not be objectionable while adding, altering or substituting a new cause of action in plaint may be objectionable - Court is of opinion that present petition is liable to be dismissed on both grounds namely the amendment filed by petitioner will change nature of case and secondly there is no pleadings whatsoever made by petitioner in entire petition while challenging aforesaid orders- Further nothing has been stated in amendment application nor in present petition regarding latches in filing amendment application since suit was filed in this case in year and amendment was sought by him in year.
Result : Petition stands disposed of
JUDGMENT :
1. Heard Sri Nitin Agrawal along with Ms. Priya Dimri, learned counsel for the plaintiff-petitioner and Sri Ashish Kumar Singh, learned counsel for the contesting respondent Nos.1 & 2.
2. The petitioner has preferred the present 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) Court No. 6 Allahabad as well as the order dated 30.11.2015 passed by Additional District Judge, Court No. 10 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 this Court.
3. Facts in brief as contained in the petition are that the property bearing house no. 129/Al situated at Darbhanga Colony, District – Allahabad of which the petitioner is sole owner and is in possession. The house no. 129 had been constructed over plot no. 33 Darbhanga Castle compound 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 Shri Surendra Jeet Singh Rekhi/ defendant respondent no. 3 and the southern 1/2 portion was allocated to Shri Nirmal Jeet Singh his other son.
4. 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 No.129 Darbhanga Castle Colony Allahabad total area 600 Sq. 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 No. 129/1A to the said house in the name of respondent no. 3. The respondent no.3 became 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.
5. After execution of sale deed the respondent No.3 remained owner of remaining area 85.61 Sq. Yards (600 -514.39)=85.61. Thereafter the respondent No.3 executed a sale deed dated 26.10.1994 in favour of Smt. Indira Mishra for area 85.16 Sq. Yards = 72 Sq. Yards of the Darbhanga Colony in respect of House No.129/1. Thus, the respondent no.3 sold the entire area of house no. 129/1 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 No. 129/1 Darbhanga Colony Allahabad in favour of defendant/respondent no. 1 through sale deed dated 19.07.1997.
6. 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 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 no. 129/1 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 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.
Point of Law : In case there is no proper pleading to support the relief as claimed in petition, then respondent has no opportunity to resist or oppose such relief, and if court considers and grant s....
The court emphasized the importance of bona fide amendments and a liberal approach to avoid multiplicity of litigations while considering applications for amendment under Order 6 Rule 17 of the CPC.
The main legal point established in the judgment is the significance of due diligence in seeking amendments to pleadings after the commencement of trial, as well as the purpose of the amendment to cu....
Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for determining real issues, provided they do not cause injustice to the other party.
Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for justice and do not change the nature of the suit.
Amendments to plaints should be liberally allowed, provided they do not cause injustice, ensuring precise determination of legal rights in ongoing litigation.
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