Allahabad High Court
Rajiv Kumar Sharma And 3 Ors. vs Satywati And Anr. on 8 July, 2013
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 36060 of 2013
Petitioner :- Rajiv Kumar Sharma And 3 Ors.
Respondent :- Satywati And Anr.
Counsel for Petitioner :- U.K.Saxena
Counsel for Respondent :- S.M.Upadhyay
Hon'ble Rajes Kumar,J.
Learned counsel for the petitioners submitted that a suit for ejectment has been filed by the plaintiff-respondents no. 53 of 1977 for the ejectment on the ground that the defendant-petitioners are the tenants of the land in dispute being part and parcel of Plot No. 27/1. In the said suit, written statement was filed. In the absence of any material to the contrary, the defendant-petitioners have accepted that the property in dispute was the part and parcel of Plot no. 27/1. The said suit has been decreed ex-parte on 17.3.1982 and a recalling application was filed on 18.3.1982. It remained pending for about 10 years and has been allowed on 11.8.1992. Meanwhile, the petitioners came to know that plot in dispute is not a part and parcel of Plot No. 27/1 but it is a part and parcel of Gata No. 9. The petitioners filed the suit, being suit no. 344 of 1983 for permanent injunction which has been decreed ex-parte on 30.5.1996 wherein it has been held that the land in dispute is the part of Gata No. 9 and not Plot No. 27/1. This order of the Additional Civil Judge (Junior Division) Khurja, Bulandshahar dated 30.5.1996 has not been challenged and has become final.
When the recalling application has been allowed on 11.8.1992 an amendment application has been moved in the month of February, 1993 seeking amendment in the written statement on the basis of subsequent fact came in the knowledge of the petitioners and resiled from their earlier admission in the written statement. The said application has been rejected on 11.5.1993 against which revision no. 23 of 1993 was filed which has been dismissed as not maintainable. Against the said order, the petitioners filed writ petition being Writ Petition No. 28077 of 1993 which has been allowed on 9.12.2009 and the matter has been remanded back to the revisional court to decide the revision on merit. By the impugned order, the revisional court dismissed the revision. The revisional court has refused to allow the amendment application mainly on the ground that it was filed after 17 years. Further the petitioners cannot be allowed to resile from their admission in the written statement.
Learned counsel for the petitioners submitted that the delay of 17 years is fully explained inasmuch as when the ex-parte order has been recalled in the year 1992 immediately the amendment application has been filed in the year 1993. The amendment application could not be filed prior to setting aside the ex-parte decree. He further submitted that the admission in the written statement can be resiled/withdrawn in case if the petitioners are able to explain and give the reasons for the same. In the present case, the petitioners are able to explain the reasons for resiling from their admission in the written statement and, therefore, both the authorities below have erred in rejecting the amendment application.
Reliance has been placed on the decision of the Apex Court in the case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another, reported in AIR 1983 SC 462 and other several decisions.
The matter requires consideration.
Both the respondents are represented by Sri S.M. Upadhyaya, Advocate. He prays for and is granted three weeks time to file counter affidavit. Rejoinder affidavit may be filed within 10 days thereafter.
List in week commencing 12.8.2013.
Till the next date of listing, the proceeding of Suit No. 53 of 1977, Ram Saran Das Vs. Bhagwat Swarup and another shall remain stayed.
Order Date :- 8.7.2013
OP
