Allahabad High Court
Ram Raj Singh S/O Shiv Sahai Singh vs State Of U.P. Thru Additional ... on 28 July, 2021
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- MISC. SINGLE No. - 4923 of 2010
Petitioner :- Ram Raj Singh S/O Shiv Sahai Singh
Respondent :- State Of U.P. Thru Additional District Judge,Court No.2,Unna
Counsel for Petitioner :- H.A.B. Sinha,Akash Dikshit
Counsel for Respondent :- C.Sc..,Sukhveer Singh
Hon'ble Rajnish Kumar,J.
1. Shri Raghvendra Kumar II, Advocate has filed Vakalatnama on behalf of the petitioner which is taken on record.
2. Heard, learned counsel for the parties and perused the record.
3. Shri Sukhveer Singh, learned counsel for the respondents no.2 and 5 submitted that the writ petition under Article 226 of the Constitution of India is not maintainable against the impugned order passed by the Additional District Judge in Civil Appeal No.14 of 2006. He further submitted that the petitioner had sought amendment at the appellate stage claiming that the land in dispute is part of the Abadi Land Nos.215, 216 and 2017, which could not have been allowed as it will change the nature of the suit. Therefore, the application has rightly been rejected.He has relied on a judgment and order passed by this Court in the case of Madhav Asharam Chairitable Trust Hanuman Mandir and Another Vs. Shri Shamshul Khuda Khan in Writ-C No.16842 of 2014.
4. Learned counsel for the petitioner, after arguing at some length, made a request for a direction to the concerned court to decide the appeal within some stipulated period. To which there is no objection by the learned counsel for the respondents no.2 and 5.
5. Learned counsel for the petitioner could not dispute that the present writ petition is not maintainable under Article 226 of the Constitution of India in view of pronouncement of Hon'ble Supreme Court in the case of Radhey Shyam & Another Vs. Chhabi Nath & Others; (2015) 5 SCC 423.
6. Having considered the submissions of learned counsel for the parties and on perusal of the record, this Court finds that the petitioner had sought the amendment at the appellate stage to the affect that the land in dispute is a part of Abadi Land Nos.215, 216 and 2017. The learned appellate court after considering the application and the objection filed by the respondent found that in the site plan, the amendment sought has not been shown. The petitioner had knowledge of the said fact before filing of the suit before the trial court in the year 1994 because the land is as such from the time of his father. Therefore, the application can not be allowed under Order-6, Rule-17 of C.P.C. The application has, accordingly, been rejected. This Court does not find any illegality or error in the impugned order.
7. This Court, in the case of Madhav Asharam Chairitable Trust Hanuman Mandir and Another Vs. Shri Shamshul Khuda Khan (Supra), has considered these issues. The relevant paragraph nos.10, 11, 18, 19 and a portion of paragraph no.20 are extracted below:-
"10. The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 2002, however, restricts and curtails the power of the court to allow amendment of pleadings by enacting that no application for amendment is to 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.
11. The proviso to Rule 17, as per the Amendment Act, 2002, has introduced the "due diligence" test, which requires that the court must be satisfied that in spite of "due diligence" the party could not discover the ground pleaded in the amendment. The term "due diligence" has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after commencement of the trial.
18. As regards the question as to whether an amendment can be allowed when it introduces a totally different or a new case, it is relevant to reiterate the legally settled position that leave to amend would be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit. Reference in this regard may be had to the judgment of the Privy Council in the case of Ma Shew Mya Vs. Maung Mo Hnaung9:-
"...All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, not to change, by means of amendment, the subject-matter of the suit."
19. In the case at hand, the court below upon due consideration of the facts of the case has come to the conclusion that the amendment which was being sought, at the stage of appeal, would have the effect of changing the very nature of the case, and the application for amendment having been rejected for the said reason, the order passed by the Trial Court cannot be faulted with.
20. As regards the other objection raised by the respondent with regard to the maintainability of the writ petition under Article 226 of the Constitution, it may be noted that in view of the authoritative pronouncement made in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.3 judicial orders passed by civil courts are not amenable to a writ of certiorari under Article 226, and for this reason also the writ petition which has been filed against a judicial order passed in a pending civil appeal, would fail."
8. Learned counsel for the petitioner has not been able to dispute the aforesaid legal position and has also not pointed out any material error or illegality in the order passed by the court's below so as to warrant interference.
9. The writ petition is, accordingly, dismissed with liberty to the petitioner to move appropriate application before the concerned court for expeditious disposal of the appeal, which may be considered by the concerned court.
.............................................................(Rajnish Kumar,J.)
Order Date :- 28.7.2021
Haseen U.
