Raghu Nandan Prasad Sharma vs Shri Rameshwar Prasad
2013 Latest Caselaw 5318 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 4
 
Case :- WRIT - C No. - 45284 of 2013
 
Petitioner :- Raghu Nandan Prasad Sharma
 
Respondent :- Shri Rameshwar Prasad
 
Counsel for Petitioner :- Sudeep Harkauli
 
Counsel for Respondent :- Madhav Jain
 
Hon'ble Sanjay Misra,J.

Heard Sri Sudeep Harkauli, learned counsel for the petitioner and Sri Madhav Jain, who has appeared by caveat on behalf of the sole respondent. Since both the parties are present, with the consent of learned counsel for the parties, this writ petition is being decided finally today itself.

By means of this writ petition, the petitioner assailed the order dated 12.07.2013 passed by the Additional District Judge, Court No. 16, Agra in Civil Appeal No. 12 of 2012 (Raghu Nandan Prasad Sharma Vs. Rameshwar Prasad  and others). By the said order, the amendment application paper n o. 26 Ga filed by the defendant appellant has been rejected.

Learned counsel for the petitioner has submitted that the impugned order is illegal for the reason that the amendment in the written statement at the appellate stage was necessary since in the suit for partition there was no determination by the trial court regarding the rights of the defendant appellant claimed on the basis of his tenancy over the premises in question. It is also stated that prior to institution of the suit for partition the defendant appellant claimed to have purchased the property from the persons who  the appellant believed to be owner of the entire property. However when the plaintiff respondent had disputed the extent of share of the vendor of the defendant appellant such amendment was necessitated.  He states that in view of the aforesaid circumstances, the amendment sought for by the defendant appellant at the appellate stage ought to have been allowed more particularly when the trial court had decreed the plaintiffs partition suit for possession and declaration of half share in the property in question.

Having considered the submission of learned counsel, the amendment sought by the defendant appellant at the appellate stage was as quoted hereunder:

"20-B.     That in the alternative and without prejudice to the aforesaid and without admitting the plaintiff's claim this defendant submits that the plaintiff has alleged that Shri Krishan Gopal Sharma, the original defendant No. 6 was the tenant of the property and was paying rent to the plaintiff to the extent of his alleged half share. If this fact is found to be in existence, this defendant being the united son of Shri Krishan Gopal Sharma, is sole legal representative and in that capacity he inherited the alleged tenancy rights. Having inherited the said tenancy right he continued to remain as such and unless and until the tenancy is determined in accordance with law, the relief for possession against him is totally misconceived and baseless. Therefore, the plaintiff in no case is entitled to claim the relief of actual possession even for the half share against this defendant and the suit for this relief is liable to be dismissed."

In the amendment application it was pleaded that the predecessor in interest of the defendant appellant was a tenant of the property in question and was paying rent to the plaintiff. The defendant appellant appears to have inherited the tenancy from his father Krishan Gopal Sharma and having done so he claimed to be a tenant till his tenancy was determined in accordance with law and therefore, he pleaded that the relief of possession against him by the plaintiff respondent in a suit for partition was misconceived and baseless. The amendment further stated that the plaintiff is not entitled to claim the relief for actual possession over half share against the defendant appellant.

The appellate court while considering the amendment sought by the defendant appellant by adding paragraph 20-B in his written statement found that the defendant appellant has been contesting the suit for the past 21 years and after the suit was decreed he has filed an application for amendment  of his written statement  at the appellate stage. It has been recorded that the defendant appellant was well aware of the aforesaid circumstances of tenancy of his predecessor in interest and the purchase of portion of the property in question prior to institution of the suit but had not taken such plea in his written statement. It has held that the fact which is sought to be brought in the written statement by amendment was in the knowledge of the defendant appellant for more than 21 years and having failed to bring it in his written statement the amendment sought was highly time barred. Moreover, it has also recorded that the heirs and legal representatives of the vendor of the defendant appellant were also deleted as defendants in the suit before the trial court and therefore, now the defendant appellant at the appellate stage cannot claim such amendment, particularly for the reason that when the heirs and legal representatives of his vendor were deleted as defendant in the suit itself, the defendant appellant is estopped from claiming any such amendment in his written statement now at the appellate stage.

The reasoning given by the appellate court in the impugned order is quoted hereunder:-

"lquk ,oa i=koyh dk voyksdu fd;kA

ewyokn dh i=koyh ds voyksdu ls Li"V gksrk gS fd mRrjnkrk la0&[email protected] us [email protected] la0&1 ,oa vU; izfroknhx.k ds fo:) ewyokn la[;k&[email protected] oknxzLr lEifRr esa vius vk/ks fgLls ds dCts o foHkktu gsrq ;ksftr fd;kA voj U;k;ky; us ewyokn la[;k&[email protected] esa ikfjr fu.kZ; ,oa vkns'k fnukafdr 14-12-2011 ds vuqlkj oknh dk okn izfroknhx.k ds fo:) oknxzLr edku ua0 [email protected] tky xyh fNyhbZV jksM vkxjk esa oknh ds vk/ks Hkkx dk dCtk o lg Lokeh ?kksf"kr djrs gq, izkjfEHkd fMdzh fufeZr fd;s tkus gsrq lO;; vkKIr fd;kA rnksijkUr mDr fu.kZ; ,oa vkns'k ls {kqC/k gksdj ds [email protected] la[;k&1 dh vksj ls ;g vihy ;ksftr dh xbZ gS vkSj vihy ds Lrj ij tokcnkos esa izkFkZuki= 26x ds ek/;e ls la'kks/ku pkgk x;k gSA mDr ewyoky dh i=koyh ds voyksdu ls ;g Li"V gS fd izfroknhx.k dh vksj ls Lo;a vkns'k 7 fu;e 11 lh0ih0lh0 ds rgr izkFkZuki= izLrqr fd;k x;k Fkk ftlesa U;k;ky; }kjk ikfjr vkns'k fnukafdr 15-04-97 ds }kjk izfroknh la[;k&[email protected] yxk;r [email protected] dks okni= ls fMyhV fd;k x;kA izfroknh la[;k&[email protected] yxk;r [email protected]] izfroknh la[;k&6 Jh d`".k xksiky 'kekZ ds fof/kd izfrfuf/k FksA ;gka ;g Li"V fd;k tkrk gS fd [email protected] la[;k&1 Jh j?kquUnu izlkn 'kekZ] Lo0 Jh d`".k xksiky 'kekZ ds iq= gSa] tks eq[; rkSj ls bl okn dks izkjEHk ls gh yM+ jgs gSaA D;ksafd izfroknh la[;k&1 iwoZ ls gh okn esa i{kdkj FksA ,slh fLFkfr esa Jh d`".k xksiky 'kekZ dh e`R;q ds i'pkr~ izfroknh la[;k&1 dks Jh d`".k xksiky 'kekZ ds LFkku ij iquZLFkkfir fd;s tkus dh vko';drk ugh FkhA 21 o"kZ iqjkus bl okn esa izfroknh la[;k&1 ds laKku esa okn ds leLr rF; igys ls gh jgs gSaA izfroknh la[;k&1 us okn ds leLr izfdz;kvksa esa Hkkx fy;k gSA nkSjku fopkj.k izfroknh la[;k&1 izR;sd izdkj dh vkifRr vkSj foUnq dks mBkus ds fy;s Lora= jgk gS ysfdu bl izdkj dk dksbZ fcUnq izfroknh la[;k&1 us nkSjku fopkj.k fufeZr ugh djk;kA ,slk izrhr gksrk gS fd fopkj.k U;k;ky; dk fu.kZ; izfroknh la[;k&1 ds fo:) gksus ds dkj.k ;g la'kks/ku izkFkZuki= izLrqr izLrqr fd;k x;k gS fd ;su&dsu&izdjs.k bl okn dh fMdzh dk izHkko lekIr gks tk;s vkSj ;g i=koyh iqu% fopkj.k dh LVst ij igqp tk;sA oknh dk nkok vius fgLls ds foHkktu ds fy;s gSaA"

From the aforesaid view taken in the impugned order, it appears that there are two  reasons why the amendment application of the defendant appellant has been rejected. First is that when the defendant appellant claimed share in the property in question by virtue of purchase from the other defendants and the heirs and legal representatives of that defendant have been deleted from the suit itself, the defendant appellant was well aware of his rights over the property in question as such the finding recorded in the impugned order for disallowing the amendment application of the defendant appellant cannot be said to be illegal or erroneous in any manner whatsoever.

The second reason given in the impugned order for rejecting the application for amendment in the written statement by the defendant appellant  at the appellate stage is that for the past 21 years the defendant appellant has contested the suit solely and has not brought this plea of tenancy. At the appellate stage after filing the appeal against the decree of the trial court he has sought amendment to claim tenancy rights over the whole property clearly shows that for the  past 21 years no steps were taken by the defendant appellant to amend his written statement before the trial court. He has sought amendment at the appellate stage which amounts to filing in the lacuna in his defence. Clearly these facts are not disputed. The view of the appellate court is in accordance with law. The appellant cannot now after remaining silent for more than 21 years claim such amendment. No valid reason has been shown as to why such an amendment should now be permitted. It is settled law that legal argument cannot be converted into pleadings and such legal issue can always be raised in the argument on the basis of facts, if any, already pleaded.

At this stage Sri Madhav Jain, learned counsel for the respondent has submitted that this writ petition has been filed against only one of the defendant and the other defendants have not been made party in this  writ petition as such the writ petition is not competent.

However, without entering into the aforesaid submission of Sri Madhav Jain, since the impugned order does not suffer from any error in law hence no interference is required therein in this writ petition under Article 226 of the Constitution of India.

In view of the aforesaid circumstances, the writ petition has no merit. It is accordingly dismissed.

No order is passed as to costs.

Order Date :- 2.9.2013

Lbm/-