Allahabad High Court
Veerendra Kumar [U/A-227] vs Additional District Judge Room ... on 16 October, 2015
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R
Reserved
Writ Petition No. 5589 (MS) of 2015
Veerendra Kumar ...Petitioner
Versus
Additional District Judge,Sultanpur and others ...Opposite parties.
Hon'ble Dr. Devendra Kumar Arora,J.
Heard.
On behalf of the private respondent-Smt. Kamla Devi, a caveat has been filed by Sri S.P.Maurya, Advocate.
Aggrieved by the order dated 18.8.2015 whereby the Revisional Court has rejected the Civil Revision No. 50 of 2010 preferred against the order dated 24.4.2010 by which the Trial Court has rejected the application 316Ka-2 wherein the petitioner has sought some amendments/alteration in the written statement filed in the Regular Suit No. 258 of 1990, in which he is one of the defendants.
On perusal of the record, it transpires that a Regular Suit No. 258/90 was filed by Hari Prasad and Smt. Kamla Devi [ opposite party no.3 and 4] for permanent injunction regarding the house shown in the site-plan with the prayer that the plaintiffs are owner and in possession and the defendants be restrained from interfering in the same. In the said suit, defendant no.1/1 and 3 jointly filed written statement on 23.2.2006 i.e. after 16 years of institution of the suit.
According to the petitioner's Counsel, after filing of the written statement, Petitioner came to know that some relevant material has been left from being written and some irrelevant facts have been mentioned in paragraphs 16,17 and 19 of the written statement and as such he moved an application under Order 6 Rule 17 of the Code for amendment/alteration.
It appears that the aforesaid application was rejected by the Trial Court vide order dated 24.4.2010 on the ground that it will change the basic nature of the suit.
Feeling aggrieved by the aforesaid order dated 24.4.2010, petitioner filed a revision no.50/2010 which was also rejected vide order dated 18.8.2015. Both the aforesaid orders are under challenge in this writ petition.
According to the petitioner Order 6 Rule 17 of the Code provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just. In the present case, the amendment is sought by the petitioner-defendant to determine the real question of alleged Will which may be fraudulent and by refusal of amendment, the real question would not be determined causing serious prejudice to the petitioner.
No doubt, it is a settled proposition that amendment can be allowed at any stage of the proceedings so far as it does not change the fundamental character of the suit. At the same time, it is also true that ordinarily, an amendment of pleadings should not be allowed by reason whereof a party to the suit would resile from the admission made by him in the same proceedings at an earlier stage. This aspect of the matter has been considered in Gautam Sarup v. Leela Jetly & Ors. [(2008) 7 SCC 85] wherein it was held :
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
In view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, no application for amendment shall be allowed after the trial has commenced unless the court comes to conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. In the instant case, the Trial Court while rejecting the application for amendment of the petitioner has relied upon the decision of Apex Court in Sumesh Singh vs. Phoolan Devi;2009 ALR 897 and observed that the petitioner wanted to withdraw/resile from the admission made earlier in his evidence. In the said case the Apex Court observed that having regard to the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure, the amendment could not have been allowed. The said proviso has been added by Act 22 of 2002 w.e.f 1.7.2002.
The Revisional Court while affirming the judgment of the Trial Court has observed that the revisionist-petitioner in paragraph 16 and 17 of his joint written statement has admitted important fact with regard to the suit property and has also submitted evidence on affidavit of DW1 and DW 2 i.e. paper no. 245Ka and 256-Ka respectively. Further, the evidence has also completed.
There is no dispute to the fact that the Regular Suit No. 258 of 1990 was filed on 2.11.1990 by Hari Prasad and Smt. Kamla Devi against Ram Autar son of Jagannath and Ravindra Kumar, Virendra Kumar and Narendra Kumar, who are sons of Ram Autar. In the said suit, petitioner and Smt.Asha [defendant no.1/1 in the suit] filed joint written statement on 23.2.2006. Thereafter the proceedings continued and in the year 2010 [17.4.2010] present petitioner [defendant no.3 in the suit] moved an application for amendment, as referred to above.
In the peculiar facts and circumstances of this case, we do not think that any useful purpose would be served in interfering with the impugned judgments at this stage particularly having regard to the observations made by the Revisional Court. The writ petition, therefore, is dismissed without any order as to costs. However, considering the fact that Regular Suit No. 258 of 1990 is pending disposal since 1990, the Trial Court is directed to make an earnest effort to consider and decide the said suit in accordance with law expeditiously within a period of six months from the date of production of certified copy of this order. Parties are also directed not to seek any unnecessary adjournments.
Date: 16 October,2015
