Court No. - 9

Case :- MATTERS UNDER ARTICLE 227 No. - 5559 of 2021

Petitioner :- Mohd. Ikram

Respondent :- Habibur Rehman Khan And 7 Others

Counsel for Petitioner :- Siraj Ahmad Khan

Counsel for Respondent :- Syed Fahim Ahmed

Hon'ble Ajit Kumar,J.

1.

Heard Mr. Dhirendra Pratap Singh, Advocate holding brief of Mr.

Siraj Ahmad Khan, learned counsel for the petitioner and Mr. Syed Fahim

Ahmed, learned counsel for the respondents.

2.

By means of this petition under Article 227 of the Constitution,

petitioner has challenged the order dated 23^rd December, 2019 whereby

petitioner's application seeking amendment in the plaint has been rejected.

Yet, another order under challenge is that of the District Judge, Rampur

dated 6^th March, 2021, rejecting the revision petition filed by the

petitioner against the order dismissing the application for amendment by

the trial court.

3.

Briefly stated facts of the case are that plaintiff-petitioner instituted

a suit being Original Suit No. 395 of 2014 seeking primarily the relief of

declaring the sale deed dated 27.04.2012 executed by defendant nos. 4 to

9 in favour of defendant nos. 1 to 3 as null and void. In the said suit, the

defendants appeared and filed their written statements contesting the

claim of the plaintiff-petitioner on merits. A number of issues were framed

by the Trial Court, and issue nos. 3 and 4 were framed as preliminary

issues, for the disposal of which the defendants have been relentlessly

pursuing the matter. It is in the year 2019 only that the petitioner moved

an application seeking amendment in certain paragraphs in the plaint and

further leave to add certain additional paragraphs and so also the plaint

map. The defendants-respondent contested the application of amendment

by filing their objections and took the plea that the amendment

application was only aimed at delaying the disposal of the preliminary

issues inasmuch as the new additional pleas would substantially

change the plaint allegations initially made and so also plaint map, if

sought to be amended, it would also be altering boundaries and

thereby changing identity of the property, and which would, in effect,

substantially change the nature of the suit. The objection was also

taken that since the plaintiff was having the knowledge of the facts

sought to be incorporated in the plaint by way of amendment, prior to

filing of the suit, in the absence of very cogent and convincing reasons

for not having the knowledge of the same despite due diligence, the

amendment, at such a belated stage after the issues had been framed

and the trial had begun, would be hit by the proviso to Order VI Rule

17 of the Code of Civil Procedure, 1908 (hereinafter referred to as

'C.P.C.'). The Trial Court upheld the submissions and objections

advanced by the defendants opposing the amendment application and

rejected the same in the revision petition, while affirming the order

passed by the Trial Court, the Court sitting in revision over and above

the order of the Trial Court extensively dealt with the legal position

that has emerged after the amendment of C.P.C. in the year 2002 and

finally concluded that the plaintiff’s revision application failed to

convince the Court about lack of knowledge of those facts sought to

be incorporated despite due diligence at the time of filing of the suit.

4.

Learned counsel for the petitioner while assailing the orders of

the Trial Court and the Court sitting in revision has submitted that in

order to do complete justice between the parties, the amendment

sought in the plaint would be necessary as it is only elaborative in

nature and does not amount to changing the nature of the suit. He

submits that amendment to the plaint map does not change the claim

of the petitioner but only corrects the boundaries of the suit property.

He also submits that the issues that were framed as claimed by the

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respondents to be preliminary issues, were only re