Sheonath & Others vs Dy. Director Of Consolidation, ...
2018 Latest Caselaw 1508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 22
 
Case :- WRIT - B No. - 35761 of 2007
 
Petitioner :- Sheonath & Others
 
Respondent :- Dy. Director Of Consolidation, Mirzapur & Others
 
Counsel for Petitioner :- Amrendra Pandey
 
Counsel for Respondent :- C.S.C.,Krishna Kumar Chaurasiya
 

 

 
Hon'ble Rajiv Joshi,J.

This writ petition has been filed for quashing the impugned orders dated 20.12.2005 and 5.7.2007 passed by the respondent no.2-Consolidation Officer, Ramai Patti, Mirzapur and respondent no.1-Deputy Director of Consolidation, Mirzapur respectively.

The facts as reflect from the record are thus:

The respondent no.3 filed two objections under Section 9A (2) of U.P.C.H. Act, 1953 (hereinafter referred to as Act) before the Assistant Consolidation Officer on 23.2.1984 and 25.2.1984 respectively. Subsequently, the objection of respondent no.3 was referred to Consolidation Officer for adjudicating the same as the dispute of title is involved. The objection was filed on the ground that in the revenue record, the name of the petitioners were recorded exclusively although, the respondent no.3 have half share in the same.

The Consolidation Officer on the basis of pleadings of the parties framed the issue. Oral as well as documentary evidence was adduced by both the parties and the same was closed on 21.8.1991. Thereafter, several dates for argument were fixed but no final decision was taken. Subsequently, the village was denotified under Section 52 of the Act.

The respondent no.3 filed an amendment application on 17.12.2003 on the ground that when the objection was filed, his father was alive and therefore, the amendment be made in his objection to the effect that his father was a man of unsound mind and therefore, it may be amended that the objection filed by the father of the respondent no.3 was through his next friend. The petitioners filed the objection to the amendment application on the ground that the said objection was filed at very belated stage i.e. almost after about 19 years from the date of filing of the objection and after the closing of the evidence, hence, such amendment cannot be allowed.

The Consolidation Officer vide order dated 20.12.2005 allowed the amendment application filed by the respondent no.2 and amended the objection filed by the respondent no.3. Against the order dated 20.12.2005, petitioner filed revision under Section 48 of the Act before the Deputy Director of Consolidation, Mirzapur, which was dismissed vide order dated 5.7.2007. Both these orders dated 5.7.2007 as well as dated 20.12.2005 are impugned in the writ petition.

I have heard learned counsel for the petitioners as well as learned counsel for the respondent no.3 and perused the record.

The contention of learned counsel for the petitioner is that amendment application was filed at very belated stage after 19 years from the date of filing of the objection. The amendment sought by the respondent no.3 cannot be allowed in view of the proviso to Order VI Rule 17 C.P.C. It is further contended that the amendment was filed to fill-up the lacuna, which is not permissible under the law. It is further contended that the facts sought to be amended were already in the knowledge of respondent no.3 at the time of the presentation of his objection under Section 9A (2) of the Act and therefore, both the consolidation authorities have committed illegality while passing the impugned orders.

Learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and others, [2013 (9) Supreme Court Cases 485] as well as judgment of this Court in the case of Ram Roop and another Vs. Deputy Director of Consolidation, Varanasi and others (2003 RR-472).

On the other hand, learned counsel for the respondent no.3 submitted that amendment application having already been allowed by both the consolidation authorities, there is no illegality or infirmity in the same and the amendment sought does not in anyway change the nature of the proceeding and amendment can be filed at any stage of the proceeding, which are necessary to determine the controversy between the parties. It is further submitted that provision of Code of Civil Procedure are not applicable in the proceeding before the consolidation authorities and therefore, the proviso to Order VI Rule 17 is not applicable.

Learned counsel for the respondent has also placed reliance on several judgments on the point that provisions of Code of Civil Procedure are not effectively applicable in the proceeding before the consolidation authorities.

I have considered the rival submissions of the parties and perused the record.

It is admitted that respondent no.3 filed two objections under Section 9A (2) of the Act, which were pending before the consolidation officer and at that time, the father of respondent no.3 was alive claiming half share in the disputed land. It is also admitted by the parties that evidence in the said proceedings before the Consolidation Officer was closed vide order dated 21.8.1991. The amendment application was filed after closing of the evidence i.e. on 17.12.2003 seeking amendment in the objection to the effect that objection was filed by the father of the respondent through his next friend.

For appreciating the controversy involved, it is necessary to have a look upon the provisions of Order VI Rule 17, which read as under:

"17. Amendment of Pleadings.- 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, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided 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 trial."

The proviso to Order VI Rule 17 specifically 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 trial.

In the present case, the amendment was filed much after the closing of the evidence i.e. after commencement of trial and both the consolidation authorities have allowed the objection without considering the proviso to Order VI Rule 17 and without recording any finding to satisfy the requirement of the said proviso that in spite of due diligence, respondent no.3 could not have filed the amendment.

Paragraph 8 of the judgment of Mashyak Grihnirman Sahakari Sanstha Maryadit (supra) is also relevant, which is quoted as hereunder:

"Indisputably, the plaintiff-respondent no.1 was the office-bearer of the Society at the relevant time and by Resolution taken by the Society respondent No.1 was authorized to complete the transaction. Hence, it is incorrect to allege that the plaintiff-respondent No.1 was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the Conveyance Deed dated 8th February, 1989, some time in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14th October, 2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order VI Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an after- thought for the obvious purpose to avert the inevitable consequence. The High Court has committed serious error of law in setting aside the order passed by the trial court whereby the amendment sought for was dismissed. The impugned order of the High Court cannot be sustained in law. "

From the perusal of the above paragraph, it is clear that the amendment, which was filed at the belated stage and was clearly afterthought for the purpose to avert the inevitable consequences, is liable to be rejected.

In the case of Ram Roop and another (supra), it is held that a new case based on the facts, which were available to the plaintiff at the time of filing of the original plaint but were not pleaded in the original plaint, cannot be permitted to be set up by way of amendment. The relevant extract of para 6 of the said judgment is quoted below:

"It is well settled in law that a new case based upon the facts, which were available to the plaintiff at the time of filing of original plaint but were not pleaded in the original plaint, cannot be permitted to be set up by way of amendment. A reference in this regard may be made to the decisions in [Basanti Dei Vs. Vijaya Krushna Patnaik and others AIR 1976 Orissa 218], Fakir Charan Mohanty Vs. KrutibasKar [AIR 1984 NOC 284] and Full Bench decision of Madhya Pradesh High Court in Lazarus Chhindwara Vs. Smt. Lavina Lazarus, Indore and others [AIR 1979 MP 70 (FB)] and also a decision of this Court in Gayatri Devi Vs. Om Prakash Gautam and others [AIR 1985 Alld. 356]"

The submission of learned counsel for the respondent no.3 is that provisions of Code of Civil Procedure are not applicable to the consolidation proceedings. No doubt the provisions of Code of Civil Procedure are not applicable but the principles analogous to the said provisions are always applicable to the consolidation proceedings. There is no doubt with regard to the said proposition of law.

In view of the aforesaid discussion, it is apparent that the amendment sought by the respondent no.3 in his objection filed under Section 9A (2) of the Act was highly belated and afterthought. The facts mentioned in the amendment application were in the knowledge of the respondents at the time of filing of the objection under Section 9A (2) of the Act and even then amendment application was filed after 19 years from the date of filing of the said objections in order to fill up the lacuna. Such amendment could not have been allowed. Both the consolidation authorities have failed to consider this aspect of the matter and have allowed the amendment application simply on the ground that amendment can be filed at any stage of the proceedings thereby altogether ignoring the proviso of Order VI Rule 17.

In this view of the matter, the impugned orders dated 20.12.2005 and 05.07.2007 passed by the respondent no.2-Consolidation Officer, Ramai Patti, Mirzapur and respondent no.1-Deputy Director of Consolidation, Mirzapur respectively are not sustainable in the eyes of law and are hereby quashed.

Since, the matter is old one, the consolidation officer, Mirzapur is directed to conclude the matter in accordance with law expeditiously, preferably, within a period of six months from the date of production of certified copy of this order.

Writ petition is allowed accordingly. No order as to cost.

Order Date :- 13.7.2018

Noman