Ram Subhag vs Gulzar And Anr.
2022 Latest Caselaw 20294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 26503 of 2021
 

 
Petitioner :- Ram Subhag
 
Respondent :- Gulzar And Anr.
 
Counsel for Petitioner :- Durga Prasad
 
Counsel for Respondent :- Raj Priya Srivastava
 

 
Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioner and Sri Raj Priya Srivastava, learned counsel appearing for the respondents.

Instant petition has been filed praying for the following main reliefs:-

"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the impugned order dated 16.10.2021, annexure no. 1 passed by Additional District and Session Judge/FTC-I Ambedkar Nagar in Civil Appeal No. 83/2009 (Ram Subhag Vs. Satta (Dead)) and others and the Hon'ble Court may further be pleased to direct the learned Additional District and Sessions Judge FTC I, Ambedkar Nagar to reconsider and allow the application for amendment dated 18.09.2021 in accordance with law, within time stipulated by this Hon'ble Court in the interest of justice."

The case set forth by the petitioner is that in the year 1984, he had filed a regular suit for specific performance. The suit was dismissed on 19.10.2006. Being aggrieved, the petitioner filed an appeal which was registered as Appeal No. 83 of 2009. He filed an application under Order 41 Rule 27 of the CPC in April, 2019 which has been rejected by the appellate Court vide order dated 18.09.2019, a copy of which is annexure 10 to the petition. Being aggrieved, a petition no. 30123 (MS) of 2019 Inre; Ram Subhag Vs. Gulzar and anr was filed challenging the said order dated 18.09.2019. This Court vide judgment and order dated 02.09.2021, a copy of which is annexure 11 to the petition directed the learned appellate Court to proceed with the pending civil appeal and to decide the same in accordance with law by reasoned and speaking order in accordance with law within a specified time. It was also left open for the petitioner-plaintiff-appellant to raise his objections against the impugned order impacting his right while hearing the appeal on merits.

Taking the said order passed by this Court to be an order by which he had been permitted to file an application for amendment, the petitioner filed an application for amendment under Order 6 Rule 17 on 18.09.2021 and the same has been rejected by the learned appellate Court vide impugned order dated 16.10.2021 which has resulted in the instant petition.

A perusal of records would indicate that in a suit filed in the year 1984 for which an appeal has been filed in the year 2006, an amendment was sought in September, 2021 i.e after approximately 37 years. The appellate Court, while rejecting the said application was of the view that there has been no due diligence on the part of the petitioner-plaintiff-appellant, apart from the amendment itself being filed after a period of almost 15 years from the filing of the appeal.

Accordingly, keeping in view aforesaid finding given by the learned appellate Court and the amendment application being filed admittedly after a period of almost 37 years by the plaintiff of filing of the suit in the year 1984 and a period of 15 years from the date of filing of the appeal it is apparent that there has been no due diligence on the part of the petitioner herein in filing the amendment for the said amendment to have been allowed by the appellate Court.

Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the petition is dismissed.

Order Date :- 7.12.2022

Pachhere/-