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ALLAHABAD HIGH COURT
Shashi Kant Gupta, J.
Sumita Samanta and Ors. —Petitioners
versus
Nand Kishore Jaiswal and Ors. —Respondents
Writ Appeal No. 40367 of 2011
Decided on 21.7.2011
For the Petitioners:Mr. Rajiv Joshi, Advocate.
For the Respondents:Mr. Anoop Trivedi and Mr. Ankur Verma, Advocates.
IMPORTANT POINT
Courts are inclined to be more liberal in allowing amendment of written statement than of plaint and question of prejudice is less likely to operate with same rigour.
Headnote:(i) Civil Procedure Code, 1908—Order VI, Rule 17—Proviso—Pleadings—Amendment of—After commencement of trial—Can be allowed if court comes to conclusion that despite due diligence parties could not raise matter before commencement of trial—Power to amend pleadings wide—Such power of Court cannot be mere hyper-technical—It should be exercised liberally. (Para 12)
(ii) Civil Procedure Code, 1908—Order VI, Rule 17—Amendment of written statement—Correct facts sought to be introduced were not in knowledge of defendants at time of filing of written statement—Amendment sought not cause any prejudice or loss to plaintiffs—While considering amendment in pleadings, a lenient and liberal view ought to be taken by Court in order to advance justice to parties—No dilatory teaches adopted by defendants as amendment application filed within 7 months of filing of written statement—Amendment allowed. (Para 17)
Shashi Kant Gupta, J.—Respondents No.1 to 3 are represented by Sri Anup Trivedi, learned counsel. He does not propose to file counter affidavit.
2. The present writ petition is disposed of finally with the consent of the learned counsel for the parties.
3. The present writ petition is directed against the order dated 6.7.2011 passed by the Prescribed Authority/Additional Judge, Small Causes, Allahabad whereby the application filed by the petitioners for amendment in the written statement was rejected.
4. The dispute relates to a shop bearing municipal number 11A/30 situated at University Road, Colonelganj, Allahabad. The respondents filed a release application on 13.7.2010 under Section 21(1)(a) of the UP Act No.13 of 1972 (in short “the Act”) for the release of the shop in dispute.
5. The petitioners filed a written statement and denied the bona fide need of the respondents. During the pendency of the release proceedings, an application was filed by the petitioners in February 2011 for amendment in the written statement on the ground that while preparing the written statement, the petitioners have the information and impression that the disputed building No.11A/30 University Road, Allahabad was purchased by Sri P. K. Pramanik and Hare Krishna Pramanik in 1977 from the erstwhile landlady Smt. Yashoda Devi in equal shares but when the petitioners saw the sale deed, then it was learned that the said building was purchased by Vishwa Nath Pramanik, Tapan Kumar Pramanik, Atul Kumar Pramanik (all sons of Sri P.K. Pramanik) and their uncle Sri Hare Krishna Pramanik in equal share. The said building was not sold by Smt. Yashoda Devi but sold by Sri Krishna Sharma, Sripat Sharma and Srikant Sharma.
The amendment was proposed in para 17 of the written statement. For ready reference relevant portion of paragraph 17 of the written statement is quoted below;
“That para 2 of the petition is not admitted for want of knowledge. The opposite parties also do not know that whether there is any partition among the applicants specifying the shares of the applicants among themselves as such the opposite parties does not know that share in South has gone to petitioner No.1 and share has gone to applicants No.2 and 3. The opposite parties also does not know regarding any partition suit No.647 of 2003 Nand Kumar v. Tapan Kumar Pramanik. The opposite parties also do not know about any decree in the alleged suit. To the knowledge of opposite parties the house No.11A/13, University Road was purchased by P. K. Pramanik and Hare Krishna Prarnanik in the years 1977 from the erstwhile owner/landlady Smt. Yashoda Devi in equal share. The rent was received by P.K. Pramanik and after his death by his heirs for themselves and for Hare Krishna Pramanik. The pedigree of Hare Krishna Pramanik. The pedigree of Krishna Pramanik and P.K. Pramanik is given below.”
At this stage, it is also relevant to quote the proposed amendment in the written statement.
“6. That the following amendment in the written statement is to be carried out as under:
(A) That on page 5 of written statement para 17 line 12 before the word “P.K. Pramanik” and after the word “by” the following be added “Vishwanath Pramanik, Tapan Kumar Pramanik, Atul Kumar Pramanik all sons of”
(B) That in the same page 5 of written statement in para 17 line 14 the word “land lady Smt. Yashoda Devi” be deleted and in the word “owner” letter ‘s’ be added and after the word “owners” the name of “Sri Krishna Sharma, Sripat Sharma and Sri Kanth Sharma” be added.
(C) That in the same page in para 17 line 14 after the word “sharer” the following be added: “as such each has 1/4th share in the property.”
6. The said amendment application was rejected by the court below by order dated 6.7.2011. Hence the present writ petition.
7. It is submitted by the learned counsel for the petitioners that the amendment sought by the petitioners goes to root of the matter and was necessary for the purpose of determinin
