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2001 DIGILAW 654 (ALL)

MALTI DEVI v. ADDL DISTRICT JUDGE II VARANASI

2001-07-09

S.K.SINGH

body2001
S. K. SINGH, J. By means of this writ petition the petitioners have challenged the judgment of respondent No. 1/addl. District Judge, Varanasi, dated 30th August, 1980 by which the matter has been remitted back to the trial Court for deciding the amendment application afresh on the merits. 2. The brief facts which are necessary for disposal of this writ petition can be summarized as under : - 3. Respondent No. 2 filed a suit which was registered as original Suit No. 18/76 for cancellation of the registered gift deed dated 10th April, 1964, which is said to be executed by plaintiff- respondent No. 2 himself in favour of the present petitioner No. 1 and also for relief of permanent injunction that the defendants be restrained from interfering in the plaintiffs possession. By filing of written statement defendants raised objection that the suit as was filed is barred by principle of res judicata and Section 49 of U. P. C. H. Act, which came to be decided by the trial Court as preliminary issue, vide order dated 22-3- 1978 against which a revision was filed by petitioner No. 2 and others. This Court vide order dated 25- 10-1979 allowed the revision and the matter was remitted back to the trial Court or deciding the issue No. 2, which related to bar of the suit, in the light of the observation as was made in the judgment. This Court while deciding the revision, had given a finding that as the allegation as was made in the plaint reflects the very nature of document which makes the same void and, therefore, the suit may not lie in the Civil Court. It is thereafter on the submission as was advanced on behalf of the opposite party that in Para 10 of the plaint, it was stated that the cause of action for filing suit arose on 8-8-1976 on account of which the opposite party could not file the objection during the consolidation proceedings, this Court having found that there is no clear finding about the allegation as was made in the plaint about accrual of cause of action on 8-8-1976, whether it is true or false, remitted the matter to the trial Court for deciding this issue after giving specific finding on this aspect. It is after remand of the matter by this Court, the plaintiffs appears to have moved an amendment application on 17th December, 1979 by which certain factual aspect was tried to be added in para 10 and 13 of the plaint. The trial Court although has not examined the propriety and otherwise merit of amendment, but it appears that as matter was remanded by the High Court, trial Court observed that there appears to be no justification for permitting the amendment, has rejected the same. It is this order of the trial Court by which the amendment was rejected, was taken up by the opposite party to the revisional Court, which came to be decided by the impugned judgment. 4. Heard learned Counsel Sri Sankatha Rai for petitioners and learned Counsel for the respondents Sri. S. N. Singh. 5. It has been submitted by the learned Counsel for the petitioners that the orders of the trial Court was well within his jurisdiction and as the scope of the interference is very limited the revisional Court was not justified in allowing the revision. It has been further argued that the scope of the enquiry was restricted by the decision of this Court and, therefore, after the amendment as has been prayed by the plaintiffs if is allowed, that will enlarge the scope of the consideration and the petitioners will suffer serious prejudice. On this fact of present case there was no necessity of moving the amendment application, which appears to have been moved to harass the petitioner and to get the proceedings lingered on. 6. Learned Counsel for the respondents have submitted that it is well-settled that the amendment can be allowed at any stage of the proceeding and on the facts of the present case, by allowing the amendment, no prejudice is said to have occasioned to the petitioners. It has been further submitted that the question of allowing/refusing the amendment has not been finally decided and as the matter has been only remanded back to the trial Court for deciding the amendment application on the merits, which is apparently an order interlocutory in nature, no interference is called for by this Court. 7. It has been further submitted that the question of allowing/refusing the amendment has not been finally decided and as the matter has been only remanded back to the trial Court for deciding the amendment application on the merits, which is apparently an order interlocutory in nature, no interference is called for by this Court. 7. On perusal of the plaint, it is clear that the plaintiffs have already sought the relief of permanent injunction, apart from the relief of cancellation of the gift-deed and in respect to the relief so claimed, it is very clearly stated in the plaint that cause of action arose on 8-8-1976. In view of the direction as was given by this Court, that there is no finding whether the allegation that the cause of action accured on 8th August, 1976 is true or false, issue was to be decided by the trial Court. The amendment as has been sought by the plaintiffs in my opinion, it is not all relevant for deciding the aforesaid aspect and the matter was to be decided by the trial Court in the light of existing pleading and materials as has come on the record. Although by allowing the revision matter has been directed to be decided afresh on merits by this trial Court, but having examined the matter in the light of the pleading of the parties, specially in view of the fact that the litigation in respect to the land in dispute, although in which the plaintiff- respondent was not a party, had come to an end in consolidation proceedings, permitted the trial Court to reconsider the issue of amendment again on the merit which in event of its disposal will permit. The part to approach the revisional Court and this Court again, may not in interest of justice. This suit itself is pending since 1976, therefore, now the permission by this Court to prolong the same on this technical issue, may not be in the interest of justice. The part to approach the revisional Court and this Court again, may not in interest of justice. This suit itself is pending since 1976, therefore, now the permission by this Court to prolong the same on this technical issue, may not be in the interest of justice. The learned Counsel for the respondent has submitted that by amendment nothing new is to be added and, therefore, the issue except which was directed to be decided by this Court has to be decided by the trial Court and, it will be open for the plaintiff to argue the matter to establish his version of accrual the cause of action on 8-8-1976 upon which the trial Court will give specific finding. 8. In view of the aforesaid, although the matter has been remanded back by respondent No. 1 to trial Court, but I feel that re-trial or issue of amendment by trial Court will not be in interest of either of the parties and, therefore, I am inclined to quash the order of respondent No. 1 dated 13th August, 1980. Accordingly, the writ petition succeeds and the judgment of respondent No. 1 dated 30th August, 1980 is here by quashed. 9. As the matter is quite old and suit is pending since 1976, counsel for both parties have stated that the parties will not seek unnecessary adjournment and will coperate in early disposal of suit and, therefore, it is hereby directed that the trial Court will not grant unwarranted adjournment unless there is compelling reasons for allowing adjournment to either of the parties and the trial Court will proceed to decide the suit with all promptness, as directed above. 10. Parties are directed to bear their own costs. Petition allowed. .