IMPORTANT POINT
Highly belated amendment cannot be allowed.

Sibghat Ullah Khan, J.— List revised.

2. No one appears for the respondents.

3. Heard learned counsel for the petitioner.

4. Original petitioner since deceased and survived by legal representatives instituted O.S.No.540 of 1990 against the respondents. The suit was for permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiff over the land in dispute having a thatched hut. In para 5 of the plaint it was stated that the land in dispute was allotted to the plaintiffs in 1978 by the Land Management Committee (about 12 years before filing of the suit). In para 7 of the plaint it was stated that about 15 days before defendants had removed the thatched roof of the hut but plaintiff had again placed the same and defendants were not in possession but plaintiffs was in possession of the property in dispute. Trial court/Civil Judge (J.D.) Mohamadabad, Gazipur dismissed the suit through judgment and decree dated 3.11.1998. Issue No.1 framed in the suit was as to whether plaintiff was owner in possession of the land in dispute? After thorough discussion of the entire material on record the trial court under issue No.1 categorically held that plaintiff was never in possession over the land in dispute and he was never having a thatched hut over the same. It was categorically found that plaintiff was not owner in possession of the land in dispute.

5. Against the decree passed by the trial court plaintiff filed Civil Appeal No.184 of 1998. After seven years of filing of the appeal i.e., in 2005 plaintiff filed application seeking amendment in the plaint. Through the amendment a prayer was sought to be added to the effect that in case it was found that defendants were in possession over the land in dispute or part thereafter which was not admitted by the plaintiff then defendants must be dispossessed and plaintiff must be delivered the possession over the same. The application was filed on 25.10.2005. The said application was rejected on 23.1.2006 by ADJ Court No.2, Ghazipur. The said order has been challenged through this writ petition.

6. In the impugned order in para 5 it is mentioned that in para 7 of the plaint plaintiff had admitted that 15 days before filing of the suit defendants had dispossessed him. This finding is wrong. In para 7 of the plaint it was stated that plaintiff’s thatched roof of the hut was removed by the defendants but plaintiff immediately replaced the same.

7. The other fault committed by the lower appellate court is that it held that the prayer was barred by Order II Rule 2 CPC Order II Rule 2 CPC does not apply to different stages of the same proceedings. Appeal is continuation of the suit.

8. However, the last reason given by the lower appellate court that the amendment was highly belated is quite correct. Suit remained pending for 8 years but no amendment was sought in the plaint. Even appeal was pending for 7 years when amendment application was filed. Accordingly, it was utter negligence of the plaintiff to have not filed the amendment application in the suit and thereafter not to file the same before LAC for seven years hence amendment application could not be allowed. Moreover by virtue of amendment incorporated in Order VI Rule 17 CPC effective from 01.07.2002 it has been provided as follows:

“Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

9. The defendants in their written statement as mentioned in the judgment of the trial court, categorically denied the possession of the plaintiff and asserted that plaintiff was never in possession while defendants were in possession since very long. Inspite of it plaintiff did not seek the amendment.

10. Learned counsel for the petitioner has cited an authority of the Supreme Court reported in Raghu Thilak D.