Allahabad High Court
Akhilesh Kumar Singh vs Gyanti Singh And 6 Others on 24 August, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171254
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 1865 of 2023
Petitioner :- Akhilesh Kumar Singh
Respondent :- Gyanti Singh And 6 Others
Counsel for Petitioner :- Umesh Vats,Sheetendra Kumar Mishra
Counsel for Respondent :- Anand Kumar Singh
Hon'ble Jayant Banerji,J.
1. Heard Shri Umesh Vats, learned counsel for the petitioner and Shri Anand Kumar Singh, learned counsel for the respondents.
2. This petition has been filed seeking the following relief:
"A. Issue an order or direction to set aside the order dated 01.02.2023 passed by Additional District Judge 3rd Jaunpur in Civil Appeal No. 81 of 2017 (Akhilesh Kumar Singh Vs. Gyanati Singh).
B. Issue an order or direction to allow the Amendment Application 61-C filed by the petitioner in Civil Appeal No. 81 of 2017 (Akhilesh Kumar Singh Vs. Gyanati Singh)."
3. It appears that a suit No. 604 of 2003 was filed on 28.11.2003 by the defendant-respondent No.1 seeking a relief of possession regarding the suit property or, in view thereof, to refund an amount of Rs.1,50,000/- alongwith compensation of Rs.1000/- per month with 10% interest per annum against the defendant No.6.
4. A written statement was filed on 20.10.2004. The aforesaid suit No. 604 of 2003 was decreed pursuant to judgment and order dated 17.10.2017. An appeal was filed by the defendant under Section 96 of the Code of Civil Procedure against the aforesaid decree, which came to be numbered as civil appeal No. 81 of 2017. In the aforesaid appeal, an application paper No. 61(Ka) was filed by the defendant-appellant seeking to amend the written statement. By the order impugned dated 1.2.2023. The appellate court has dismissed the aforesaid application for amendment.
5. The contention of the learned counsel for the petitioner is that the amendment sought was not as if the nature of the defence would be changed inasmuch as the gallery in dispute had an area of 25 x 10 feet but in the judgment of the trial court, it was wrongly mentioned as 25 x 100 feet. It was stated that the plaintiff's own case is that the sale deed dated 7.11.2002 was in respect of the property having an area of 25 x 10 feet which is mentioned in paragraph Nos. 4 and 5 of the plaint. It is stated that, therefore, in the additional pleas raised in the written statement, this fact was sought to be elaborated that the area under the sale deed was 25 x 10 feet.
6. A perusal of the impugned order reveals that the appellate court has noticed that in the written statement, the contents of paragraph Nos. 4 and 5 of the plaint have been denied and, therefore, the defendant is seeking to change the nature of the plea and new facts are sought to be introduced in the written statement. It was further observed that amendment in the written statement has been sought at the appellate stage but as per the amended proviso, since the amendment has been sought after the commencement of the trial, the amendment application cannot be allowed.
7. It was stated that the evidence of the parties has concluded and the trial court has given its decision, against which the appeal has been filed and, accordingly, the application was rejected. By the amendment under the Act 22 of 2002, a proviso was inserted in Order VI Rule 17, with effect from 1.7.2002 which limits the extent of the permissibility for allowing an amendment in the pleadings. It is not the case of the defendant in application number 61(Ka) that despite exercise of due diligence, he could not have raised the matter before commencement of the trial.
8. As a matter of fact, the petitioner admits the fact that the amendment application filed was within his knowledge, but due to human error, it was omitted to be mentioned. In any view of the matter, the own case of the plaintiff, as reflected in application No.61(Ka) is that the area that is mentioned in the sale deed dated 7.11.2002 has dimensions of 25 x 10 feet, which is 250 square feet.
9. Under the circumstances, no interference is called for in the impugned order dated 1.2.2023, and this petition is, therefore, dismissed.
Order Date :- 24.8.2023
K.K.Tiwari
(Jayant Banerji, J.)
