Allahabad High Court
Shri Ram Since Deceased And Others vs Om Prakash And Another on 20 November, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:208075
HIGH COURT OF JUDICATURE AT ALLAHABAD
SECOND APPEAL No. - 824 of 2010
Shri Ram Since Deceased And Others
.....Appellant(s)
Versus
Om Prakash And Another
.....Respondent(s)
Counsel for Appellant(s)
:
Girija Shankar Srivastava, Hari Shanker Mishra, Neerad Srivastava
Counsel for Respondent(s)
:
Anand Upadhyay, Ashish Jaiswal, Pradeep Kumar Mishra, Sandeep Kumar Keshari
HON'BLE ROHIT RANJAN AGARWAL, J. 1. Heard Sri Girija Shankar Srivastava, learned counsel for the appellant and Sri Ashish Jaiswal, learned counsel for the respondent.
2. This second appeal filed under Section 100 of Code of Civil Procedure (hereinafter referred as "CPC") assails the judgment and decree dated 15.07.2010 passed by Additional District Judge, Court No. 9, Allahabad and judgment dated 22.11.2007 passed in Original Suit No. 1947 of 2003.
3. Facts, in brief, are that plaintiff-appellant instituted Original Suit No. 1947 of 2003 against defendants-respondents claiming relief of permanent injunction. According to plaint, father of plaintiff-appellant, Sukhai had two sons, plaintiff- Shri Ram and Siddh Lal @ Siddh Nath. After death of Sukhai, property in dispute was inherited by both sons of Sukhai and their names were mutated in revenue records. Unfortunately, brother of plaintiff Siddh Nath died and his wife predeceased. According to plaint version, name of plaintiff was recorded in revenue records. Defendant nos. 1 and 2 started interfering in the peaceful possession which had led to filing of the plaint. The trial court on 22.11.2007 finding that no cause of action was made out and the plaint lacked basic pleading dismissed the suit. Aggrieved by the judgment of trial court, Civil Appeal No. 200 of 2007 was filed under Section 96 of CPC. During pendency of civil appeal, an amendment application under Order VI Rule 17 CPC was filed for amending the plaint and adding following paragraph after paragraph 8:-
"?? ?? ??? ???? ?? ???? 8 ?? ???? ???? ??? ???? "?????? 13.10.2003 ??" ?? ??? ??? "????? " ?? ???? ?????? ?? ???? ??? ???? ??? ?????????? ????? ????? ?? ????? ?? ??????
"?? ??????????? ?? ?????? ?? ??? ?????? ???? ?? ???? ????? ???? ?? ??? ???????? ???? ??? ???? ?????? ?? ???? ?? ????? ?? ????? ?? ???? ???? ?????? ???? ????? ???? ?? ????? ???"
4. The amendment application was rejected on 24.02.2010 on the ground that it changes the nature of suit and after dismissal of the suit on the ground that no cause of action was made out, the amendment sought could not be introduced. The appellate court framed following point of determination:-
"1. ???? ??????? ??? ????? ??????? ?????? ??? ?? ?????? ?? ??? ??? ??????? ?? ?? ????????? /???? ??? ???????? ?? ?????? ????????? ?? ???? ??? ????? ???? ??? ??? ??? ?? ?"
5. The appeal filed by plaintiff was dismissed on 15.07.2010. Hence, the present second appeal.
6. Sri Girija Shankar Srivastava, learned counsel for the plaintiff-appellant submits that it was due to error of counsel that the plaint lacked basic pleading and an amendment was sought at the appellate stage which should have been allowed by appellate court. According to him, only addition in paragraph 8 was to the extent that defendants had forcibly tried to enter into the field of plaintiff and had taken tractor on the field for encroaching upon it. According to him, the plaint discloses cause of action as there being dispute between the parties and injunction should have been granted. He has further demonstrated that merely on apprehension also the injunction can be granted. According to counsel for plaintiff, the amendment can be made at any stage. He has relied upon the decision of Apex Court rendered in case of Ganesh Trading Company vs. Moji Ram, AIR 1978 SC 484 and decision rendered in case of Pankaja and another vs. Yellappa (D) by L.Rs. and others, 2004 (97) RD 451.
7. Sri Ashish Jaiswal, learned counsel appearing for defendants-respondents submits that Siddh Nath had two daughter. The eldest daughter had died and his husband was arrayed as defendant no. 1 in the suit while second daughter was arrayed as defendant no. 2. According to him, suit was filed without disclosing the fact that Siddh Nath had two daughters who succeeded to his property. According to him, the averment made in para no. 3 is misleading as it states that Siddh Nath did not have any son. According to him, the trial court had rightly dismissed the suit finding that no cause of action is made out. He further contends that order passed on amendment application on 24.02.2010 has not been challenged and appeal is only against the judgment passed in civil appeal.
8. I have heard respective counsel for the parties and perused the material on record.
9. It is an admitted case that dispute hinges around the land of Siddh Nath who had died leaving behind two daughters. From perusal of the plaint, it is clear that there is no recital as to two daughters of late Siddh Nath. The only averment made in para no. 3 of the plaint is that Siddh Nath did not have any son who succeeded to the property and his wife had predeceased him, as such, the land was recorded in the name of plaintiff- Shri Ram. Paragraph 4 of the plaint states that defendants are conspiring to take over the possession of the land in question. The trial court had proceeded on the said fact and had dismissed the suit in view of the fact that plaint does not disclose any cause of action.
10. Order VII Rule 11(a) of CPC provides that plaint may be rejected if it does not disclose any cause of action. In the instant case, the trial court having recorded finding that no cause of action was disclosed from the perusal of the plaint, thus, proceeded to reject the plaint.
11. As far as the framing of issues is concerned, as no written statement was filed by defendants, the trial court did not frame any issue in pursuance of Order XIV CPC. The appellate court after making point of determination has also found that no cause of action arose for instituting the same as it is evident from the reading of the plaint and, thus, proceeded to dismiss the appeal.
12. The question regarding amendment of pleading is concerned, this Court finds that order dated 24.02.2010 has not been challenged by which the amendment to the plaint has been rejected by appellate court.
13. Counsel for plaintiff submitted that he may be permitted to challenge the order dated 24.02.2010.
14. This Court finds that after 15 years from the date of passing of order on the amendment application and also looking to the fact that civil appeal was dismissed on 15.07.2010, no opportunity can be granted to fill up the lacunae by challenging the order rejecting the amendment application of the year 2010. Moreover, proviso to Order VI Rule 17 clearly provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
15. In the instant case, the very suit filed by plaintiff-appellant was dismissed on the ground that it did not disclose any cause of action. If the amendment application is allowed at this stage, it would introduce totally a new case and judgment of trial court would be reversed. The Court cannot allow the amendment to cure the basic defect occurred in filing of the plaint, which is not curable. The suit filed by plaintiff is not maintainable in view of Order VII Rule 11(a) CPC and the plaint needs to be rejected on that ground alone. Once the plaint has been rejected by trial court, allowing the amendment at the second appellate stage would be introducing a new case and restoring the case of the plaintiff and setting aside the judgment of both trial court as well as appellate court wherein finding has been recorded as to no cause of action having been made out.
16. This Court has perused the judgment relied upon by plaintiff-appellant in case of Pankaja (supra) which is not applicable in the instant case and judgment relied upon in case of Ganesh Trading (supra) does not help the case of plaintiff-appellant, in fact, it helps the case of defendants-respondents as the Apex Court in para no. 4 and 5 has held as under:-
"(4) It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
(5) It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its short-comings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."
17. Thus, I find that no substantial question of law is made out. The appeal was not admitted earlier and notices were issued on 11.08.2010 to respondents and only a status quo order was passed in respect of property in dispute.
18. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
19. Considering the fact and circumstances of the case, I find that no substantial question of law is made out and no interference is required in judgment and decree impugned.
20. The second appeal fails and is hereby dismissed.
In Re: Civil Misc. Contempt Application No. 357237 of 2016
1. The contempt application moved by plaintiff-appellant was treated to be an application under Order XXXIX Rule 2A CPC.
2. As the second appeal has been dismissed vide order of date, the contempt application stands dismissed.
3. Contempt notice stands discharged.
(Rohit Ranjan Agarwal,J.)
November 20, 2025
(V.S.SINGH)
