Amrish Kumar vs Addl.Commissioner, Meerut ...
2013 Latest Caselaw 6201 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28
 

 
Case :- WRIT - C No. - 62774 of 2007
 

 
Petitioner :- Amrish Kumar
 
Respondent :- Addl.Commissioner, Meerut Division, Meerut & Others
 
Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma
 
Counsel for Respondent :- C.S.C.,J.J. Munir,V.K. Singh
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the petitioner.

By this petition, the petitioner has challenged the order dated 19.11.2007 passed by the Additional Commissioner, Meerut Division, Meerut in Revision No.88 of 2005-06 and the order dated 07.03.2006 passed by the Up-Ziladhikari, Sikandrabad in Revenue Suit No.3 of 2004, under Section 229B of the U.P. Z.A. & L.R. Act, by which the amendment sought by respondent no.3 in his written-statement has been allowed.

A perusal of the record reveals that the petitioner instituted Revenue Suit No.3 of 2004, under Section 229B of the U.P. Z.A. & L.R. Act, for declaration that he is co-bhumidhar to the extent one half share in the plots enumerated in the plaint. The plaint case was that the land in question was bhumidhari of the plaintiff's father, Gajraj Singh and that after his death, the plaintiff as well as the defendant no.1, namely, Aniruddh Singh, who has been impleaded as the respondent no.3 in this petition, being the sons of Gajraj Singh, became co-bhumidhars in equal share. It was pleaded that Aniruddh Singh (defendant no.1), by taking advantage of a fraudulent entry in Form P.A.-11, sold the entire land to Jagat Singh and Bhagat Singh i.e. defendants 2 and 3, arrayed as respondent nos.4 and 5 respectively. It was pleaded that the sale-deed in favour of the respondent nos.4 and 5 was void to the extent of one half share of the plaintiff and, therefore, the plaintiff was entitled to declaration of his rights.

It appears from the record (i.e. Annexure No.2 to the petition) that an objection dated 19.03.2005 was filed by the respondent no.3 (defendant no.1 in the suit) claiming therein that he was the sole successor to the interest of Gajraj Singh and being the sole successor he was well within his rights to execute sale-deed in favour of defendant nos.2 and 3 (respondent no.4 and 5 to the writ petition). The petitioner claims this objection to be the written statement of defendant no.1.

It further appears from the record (Annexure 4 to the writ petition) that subsequently, on 12.12.2005, during the pendency of the suit, an application was filed by Aniruddh Singh (defendant no.1) for amendment of the written-statement thereby seeking incorporation of various pleas to show as to how he derived exclusive right over the property in dispute. By way of the proposed amendment, Sri Anirudh Singh introduced the case that a Will was executed by his late father Gajraj Singh in his favour on 02.01.1998 and pursuant to the said Will he had become exclusive owner of the suit property. In paragraph no.3 of the application it was stated that he came to know about the Will on 01.10.2005 and prior to that he had no knowledge of the Will. In paragraph 4 it was stated that as he had no knowledge of the Will prior to 01.10.2005, the necessary fact with regard to the execution of the Will could not be placed in the written statement, therefore, the amendment may be allowed. This amendment was allowed by the impugned order dated 07.03.2006 passed by the Up-Ziladhikari, Sikandrabad and the revision of the petitioner filed against the order dated 07.03.2006 has been dismissed by the Additional Commissioner, Meerut Division, Meerut by the impugned order dated 19.11.2007.

The submission of the learned counsel for the petitioner is that by incorporation of the amendment the nature of the case set up in the written-statement has changed, therefore, the amendment ought not to have been allowed at a belated stage, particularly, when the court had fixed a date for recording of evidence. The learned counsel for the petitioner also placed before the Court the amendment in Order 6 Rule 17 of the Code of Civil Procedure, carried out by Act No.46 of 1999, by which a proviso has been inserted, which provides 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 the trial.

Relying on the aforesaid proviso, the learned counsel for the petitioner submitted that as the examination-in-chief of the plaintiff had been recorded, it would be deemed that the trial had commenced, accordingly, the amendment application ought not to have been allowed without considering the aspect as laid down in the proviso to Order 6 Rule 17 of the Code of Civil Procedure.

I have carefully perused written-statement as well as the amendment sought in the written-statement. The alleged written statement of the defendant no.1, which has been enclosed as Annexure No.2 to the writ petition, does not appear to be a written-statement, inasmuch as, it does not at all render para-wise reply to the plaint averments, in fact, it appears to be an objection to some application. However, it does say that the defendant no.1 was the sole and exclusive successor to the interest of Gajraj Singh and, therefore, the defendant no.1 had every right to execute the sale-deed in favour of the defendant nos.2 and 3. The amendment application, seeks to amend the written-statement, so as to provide explanation for the case set up by the defendant in his written statement and, therefore, it is explanatory/ clarificatory in nature, inasmuch as, it only explains/ clarifies as to how the defendant no.1 claimed exclusive title over the suit property.

In such circumstances, the Court is of the view that the amendment sought by the defendant no.1 in the written-statement does not change the nature of the plea taken by him but it only explains/ clarifies the plea initially taken by him and further elaborates the same.

It is settled law that at the time of considering an application for amendment, the merit of the plea sought to be taken is not to be considered because that it is to be adjudicated upon only after leading of evidence by both sides. What is to be seen, at this stage, is whether the amendment is necessary to determine the real controversy between the parties (vide Andhra Bank v. ABN Amro Bank:(2007) 6 SCC 167; Usha Devi v. Rizwan Ahmed: (2008) 3 SCC 717). Considering the matter in the light of the principle aforesaid, the real controversy between the parties was whether the defendant no.1 was the sole successor of Gajraj or was a successor in equal share with the plaintiff i.e. the petitioner. In such circumstances, setting up of the Will does not at all change the real controversy between the parties. Therefore, the submission of the learned counsel for the petitioner that the nature of the case has changed, because of the amendment, cannot be countenanced.

So far as the second submission of the petitioner that the Court ought not to have allowed the amendment after commencement of trial, without considering the import of the Proviso to Rule 17 to Order 6, is concerned, no doubt, the order of the trial court is silent on this aspect. But considering the statement made in the amendment application that the knowledge of the Will was obtained only on 01.10.2005 that is after the filing of the written statement, there was sufficient material on record for the Court to exercise its power to allow the amendment. Therefore, I do not consider it to be a fit case for interfering with the order passed by the court below in exercise of the writ jurisdiction under Article 226 of the Constitution of India. More so, it will be open to the petitioner to raise all such pleas before the court so as to challenge the due execution of the Will set up by the defendant no.1.

Subject to the aforesaid observations, the writ petition is dismissed.

Order Date :- 1.10.2013

AKShukla/-