Allahabad High Court
Bhikhi vs Ram Newas And Another on 2 May, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- MATTERS UNDER ARTICLE 227 No. - 2234 of 2023
Petitioner :- Bhikhi
Respondent :- Ram Newas And Another
Counsel for Petitioner :- Pankaj Kumar Shukla
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner.
In view of order being proposed to be passed, notices to opposite parties stand dispensed with.
Petition under Article 227 of the Constitution of India has been filed challenging order dated 04.01.2023 passed in Civil Appeal No.05 of 2019 whereby application filed by petitioner-plaintiff for amendment of plaint at the appellate stage has been rejected.
Learned counsel for petitioner submits that petitioner had filed suit for permanent injunction which was dismissed vide judgment and order dated 28.03.2019 against which first appeal has been filed. Learned counsel for petitioner submits that during pendency of appellate proceedings, the petitioner-plaintiff was dispossessed from suit premises due to which an appropriate prayer was sought to be introduced in plaint by means of amendment application, which has been rejected on the ground that dispossession had taken place while suit proceedings were pending and therefore no explanation has been made by the petitioner-plaintiff to explain delay in seeking amendment of plaint. The said order also indicates the fact that the petitioner-plaintiff, being fully aware of aforesaid dispossession could have very well sought the amendment during suit proceedings but learned counsel for petitioner submitted that the appellate court has completely loss sight of the fact that illegal construction by defendants had been made during course of appellate proceedings and not trial court proceedings and as such there was no occasion for the plaintiff to have sought any amendment at the trial stage. It is submitted that in view of liberal interpretation of Order 6, Rule 17 of the Code of Civil Procedure, amendment was required to be allowed.
Considering submissions advanced by learned counsel for petitioner and upon perusal of material available on record, it appears that particularly from a reading of the application seeking amendment that no date of cause of action has been indicated in the application which also does not indicate whether construction was allegedly raised over the suit property by the defendants during course of trial or appellate proceedings. It appears that appellate court has rejected the application on a presumption that construction was allegedly raised by defendants at the trial stage. However a reading of the application for amendment makes it evident that the same has been drafted in completely vague terms without indicating the date of cause of action nor even the fact whether the alleged construction said to be raised on the suit property was made at the trial or the appellate stage. No doubt amendment of plaint is required to be liberally construed but not where even the cause of action is not indicated in proper terms in the application.
In such circumstances, no exception can be taken to order dated 04.01.2023 passed in Civil Appeal No.5 o 2019.
In view of aforesaid, petition being devoid of merits is dismissed at the stage of admission itself.
Office is directed to communicate a copy of this order for it being placed on record of Civil Appeal No.05 of 2019 pending in the Court of Additional District Judge/ FTC 1st, Gonda
Order Date :- 2.5.2023
Subodh/-
