Vyasdhar & Ors vs A.D.J Court No. 5 Gonda & Ors
2017 Latest Caselaw 8113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED ON :08.12.2017
 
DELIVERED ON: 19.12.2017
 
Court No. - 8
 

 
Case :- MISC. SINGLE No. - 28860 of 2017
 

 
Petitioner :- Vyasdhar & Ors
 
Respondent :- A.D.J Court No. 5 Gonda & Ors
 
Counsel for Petitioner :- Shastri Prasad Tripathi,Rishabh Tripathi
 
Counsel for Respondent :- Ramesh Pratap Singh
 

 
Hon'ble Rajan Roy,J.

Heard.

This is a petition under Article 227 of the Constitution of India challenging an order dated 30.10.2017 passed by the Additional District Judge, Gonda in Civil Appeal No. 14 of 2017 allowing the application for amendment of the the plaint by the appellant-plaintiff on the ground that the amendment sought is only in the number of Gata i.e. instead of old number a new number is sought to be mentioned which did not change the nature of the case.

On a perusal of the order of the trial Court dismissing the suit of the contesting opposite parties who were the appellant-plaintiff, the Court finds that the old Gata number of the land in dispute i.e. Gata No. 104, was very much taken into consideration while deciding the suit on merits. The Court asked the counsel appearing for opposite parties 2 and 3 as to whether there was any change of location of the Gata consequent to renumbering of the Gata he stated that it was not so. In this view of the matter once the old Gata number 104 situated at the same place where it is today has been taken into consideration and there is no difference in the area of the plot also as admitted by the counsel for the opposite parties 2 and 3 at the Bar before this Court then one fails to understand as to what was the occasion for filing the amendment application at the appellate stage. The Appellate Court while allowing the amendment application has not taken into consideration the object of inserting the proviso to Order VI Rule 17 of the Code of Civil Procedure. The facts which were sought to be inserted at the appellate stage in the plaint were very much within the knowledge of the plaintiff-appellant and there is nothing to show that there was any due diligence on their part in this regard. Therefore, considering the facts and circumstances of the case the amendment application which has been allowed by the Appellate Court cannot be sustained. The order of the Appellate Court is accordingly quashed. The Appellate Court shall now proceed to decide the appeal as per law with expedition.

Once Gata No. 104 has already been taken into consideration by the trial Court any plea based thereon can always be raised by the appellant-plaintiff before the Appellate Court so far as it it is permissible, therefore, no prejudice is being caused to the appellant.

Petition under Article 227 of the Constitution of India is allowed in the aforesaid terms.

Order Date :- 19.12.2017

Vijay