Sayeed Ur Rab And Another vs Safi Ullah Siddiqui
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Allahabad High Court

Sayeed Ur Rab And Another vs Safi Ullah Siddiqui on 13 December, 2023

Author: Ashutosh Srivastava

Bench: Ashutosh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:241014
 
Court No. - 44
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 10898 of 2023
 

 
Petitioner :- Sayeed Ur Rab And Another
 
Respondent :- Safi Ullah Siddiqui
 
Counsel for Petitioner :- Ashish Kumar Dubey,Rajesh Chandra Dwivedi
 
Counsel for Respondent :- Sumit Jaiswal
 

 
Hon'ble Ashutosh Srivastava,J.
 

Heard Shri Rajesh Chandra Dwivedi, learned counsel for the petitioners and Sri Sandeep Kumar, learned counsel for the respondents.

The instant petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 17.08.2022 passed by the Additional District Judge, Allahabad, in Civil Appeal No. 14 of 2021 (Safi Ullah Siddiqui vs. Sayeed Ur Rab and others) whereby and whereunder the Amendment Application of the plaintiff/respondent seeking amendment in the plaint at the Appellate Stage has been allowed.

Learned counsel for the petitioners submits that the petitioners are the Defendants/Respondents in the Civil Appeal No. 14 of 2021. The Plaintiff/Respondent Safi Ullah Siddiqui instituted a Suit being Suit No. 138 of 2016 against the petitioners and Defendant/Respondent Nos. 3 to 6 herein, claiming the relief of cancellation of Sale Deed dated 25.10.2012 executed by the petitioner No. 2 in favour of the petitioner No. 1 and relief of permanent injunction restraining the petitioners and Defendants/Respondents No. 3 to 6 from interfering in peaceful possession of the Plaintiff/Petitioners in respect of House No. 137-13/183 situate at Noorullah Road, Pargana and Tehsil-Sadar, Allahabad. The Suit was filed on the premise that the plaintiff had appointed the Petitioner/Defendant no. 1 as his Power of Attorney on 06.05.2000 to look after the house and manage the affairs. The Power of Attorney was revoked and the Petitioner/ Defendant No. 2 was appointed as Power of Attorney on 03.04.2007. This Power of Attorney was also revoked and a fresh Power of Attorney was executed in favour of his own daughter Eram Siddiqui on 01.02.2016. The petitioner no. 2 misusing the Power of Attorney is stated to have executed a Sale Deed on 25.10.2012 which was sought to be cancelled.

The Trial Court issued notices to the Defendants but the same was not served upon the petitioners. The Trial Court thereafter proceeded ex-parte and vide judgment and Decree dated 01.03.2021 dismissed the Suit. The Plaintiff/Respondent no. 1 has filed an Appeal assailing the judgment and Decree of the Trial Court being Civil Appeal No. 14 of 2021 which Appeal has been admitted and consequent to the notices issued the petitioners have put in appearance in the Appeal.

Learned counsel for the petitioners submits that the Plaintiff/Respondent no. 1, during the pendency of the Appeal, filed an application seeking amendment in the plaint of the suit to incorporate certain subsequent events which have occurred during the pendency of the Appeal. In the amendment Application it has been stated that the Defendant/Respondent No. 4 namely Shafaat Afsar had been in occupation of the northern Apartment of 1st Floor of the plaintiff's house as a licensee. The license has been revoked and cancelled vide registered notice dated 16.07.2021 requiring the said Defendant/Respondent no. 4 to deliver vacant possession of the said Apartment to the Plaintiff. The time of the notice has since expired but the possession has yet not been handed over to the plaintiff. The Defendant No. 1/ Petitioner no. 1 in connivance of the petitioner no. 2 entered in possession of the entire ground floor and the southern Apartment on the First Floor and Northern Apartment on the 2nd Floor which was under control/ management of the petitioner no. 2 on 28.09.2021 and put his locks over the same. In the wake of the subsequent event, the plaint of the Suit No. 138 of 2016 was sought to be amended by incorporating various pleadings and the relief of possession and damages are sought to be incorporated. The amendment Application was contested by the petitioners by filing their objections to the effect that the amendment could not be permitted as the facts sought to be brought on record were well within the knowledge of the plaintiff that the petitioners were in possession over the suit property and no such issue was raised at the stage of filing the suit. The proposed amendment changes the nature of the suit and cannot be allowed. The amendment has been moved on false and frivolous grounds.

The Lower Appellate Court vide its order dated 17.08.2022 has allowed the amendment.

Learned counsel for the Defendants/ Petitioners has argued that the amendment was not liable to be allowed as the plaintiff/respondent no. 1 had not approached the Court with clean hands and wanted to undo the things which had been legally done. The petitioner no. 1 is in lawful possession of the Suit property under a registered Sale Deed executed by the lawful Power of Attorney appointed by the Plaintiff/Respondent which was revoked subsequently. The name of the petitioner no. 1 is duly recorded in the Municipal records and he is the owner of the house. The discretion to allow the amendment at the appellate stage has incorrectly been exercised. The lower Appellate Court has been swayed away by the fact that amendment is necessary to avoid multiplicity of the proceedings. It is accordingly prayed that the order allowing the amendment is liable to be set aside and the petition is liable to be allowed.

Per contra, Sri Sandeep Kumar, learned counsel for the contesting plaintiff/respondent no. 1 submits that the order impugned allowing the amendment in the facts and circumstances of the case is just and proper. By way of amendment only subsequent events or sought to be brought on record which are necessary for deciding the real controversy between the parties. The amendment does not in any manner alter the nature of the suit it has merely added a relief of possession and for damages which is a consequential relief to the relief of cancellation of the sale deed dated 25.10.2012 already made in the suit. Reliance has been placed upon the decisions of this Court in the case of Dharam Chand Pandey vs. District judge, Faizabad & others reported in 2010 (3) ALJ 593 and two decisions of the Apex Court reported in AIR 2004 (SC) 4102, and AIR 2006 (SC) 1647 for the proposition that the dominant purpose of allowing the amendment is to minimize the litigation and delay and laches in moving the amendment is liable to be ignored as also that merits of the proposed amendment is not to be gone into at the stage of allowing the amendment.

I have heard the learned counsels for the parties. With the consent of the parties I proceed to decide the petition on merits at the admission stage itself. I have perused the record and have also gone through the impugned order allowing the amendment. The lower Appellate Court/ Additional District Judge, Court No. 22, Allahabad has recorded adequate reasons to allow the amendment which is in consonance with the law laid down by this Court as well as the Apex Court. Learned Court below has taken note of the fact that the Suit No. 138 of 2016 was filed for the relief of cancellation of Sale Deed and for injunction stating that the plaintiff was in possession over the disputed property. The contesting Defendants/ petitioners herein did not appear in the Suit to state that the plaintiff was not in possession. By way of the amendment the plaintiff has sought to incorporate subsequent events that took place during the pendency of the Appeal and relief for possession and damages.

In the opinion of the Court while considering the amendment Application the Court is not required to go into the correctness or falsity of the case setup in the amendment and such pleas are not to be adjudicated at the stage of allowing the amendment. All amendments of pleading should be allowed which are necessary for determination of the real controversies in the Suit. The real controversy test is the basic or cordial test and it is the primary duty of the Court to decide whether the amendment proposed is necessary to decide the real dispute between the parties. In the opinion of the Court, the granting of the amendment subserves the ends of justice and will avoid further litigation and has been rightly permitted by the Court below. The Court below being the First Appellate Court was well within the powers conferred to it under Section 107 (2) CPC to allow the amendment. The order passed in Appeal does not suffer from any illegality or impropriety while allowing the amendment so as to warrant any interference by this Court under Article 227 of the Constitution of India.

In Sadhana Lodh vs. National Insurance Company Limited, reported in 2003 (3) SCC 524 the Apex Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within the parameters of the jurisdiction. In the exercise of its jurisdiction under Article 227 the High Court does not act as an Appellate Court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or Tribunal has passed an order.

In the Case at hand, the learned lower Appellate Court in the considered exercise of its jurisdiction has allowed the amendment in the Plaint under Order 6 Rule 17 CPC. There is no reason for this Court to interfere. The order dated 17.08.2023 allowing the amendment is affirmed. The petition is accordingly dismissed. No order as to costs.

Order Date :- 13.12.2023

Deepak/