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2002 DIGILAW 1712 (ALL)

Rajwati Varshney v. Satya Prakash

2002-11-18

S.P.MEHROTRA

body2002
JUDGMENT : S.P. Mehrotra, J. This writ petition has been filed by the Petitioner, inter alia, challenging the order dated 28.10.2002 (Annexure-1 to the writ petition) passed by the Prescribed Authority/Civil Judge (JD) Sahaswan, Badaun in Misc. Case No. 54 of 1988. 2. The dispute relates to a shop situated in Mohalla No. 6, Kasba Bilsi, Pargana Kot, Tehsil Sahaswan, district Badaun, the details of which have been given in the release application referred to hereinafter. The said shop has hereinafter been referred to as "the disputed shop". 3. From the allegations made in the writ petition, it appears that the Respondent No. 1 filed a release application u/s 21(1)(a) of the U.P. Act No. XIII of 1972 (in short "the Act") against the tenant, namely Gendan Lal. The said release application was registered as Misc. Case No. 54 of 1988. 4. It further appears that during the pendency of the said release case, the said Gendan Lal died. Thereafter, his heirs and legal representatives were brought on record as opposite parties No. 1/1 to 1/9 in the said release case. It further appears that opposite parties No. 1/1 to 1/4 were originally brought on record as the heirs and legal representatives of the said Gendan Lal. Subsequently the opposite parties No. 1/5 to 1/9 have also been brought on record as heirs and legal representatives of the said Gendan Lal pursuant to the order dated 30.9.1995. 5. It further appears that by the order dated 5.9.1997, the said release case was directed to proceed ex parte as against the opposite party No. 1/8 (Petitioner herein). The opposite party No. 1/8 (Petitioner herein) moved an application for recalling the order dated 5.9.1997 which was dismissed by the prescribed authority vide its order dated 17.1.1998. 6. Thereafter, the Petitioner (opposite party No. 1/8) filed a writ petition being Civil Misc. Writ Petition No. 3663 of 1998 challenging the said order dated 17.1.1998 and the said order dated 5.9.1997. The said Writ Petition No. 3663 of 1998 was disposed of by the order dated 3.7.2001. By the said order dated 3.7.2001, this Court quashed the said order dated 5.9.1997 and the said order dated 17.1.1998. It was further directed that the said release case would be decided expeditiously. 7. The said Writ Petition No. 3663 of 1998 was disposed of by the order dated 3.7.2001. By the said order dated 3.7.2001, this Court quashed the said order dated 5.9.1997 and the said order dated 17.1.1998. It was further directed that the said release case would be decided expeditiously. 7. It further appears that a replication dated 5.10.2001, was filed on behalf of the Respondent No. 1 in the said release case in reply to the written statement filed on behalf of the opposite party No. 1/8 (Petitioner herein). A copy of the said replication dated 5.10.2001, has been filed as Annexure-5 to the writ petition. 8. Thereafter, an application dated 16.10.2002, was filed on behalf of the opposite party No. 1/8 (Petitioner herein), inter alia, seeking certain amendments in the written statement filed on behalf of the opposite party No. 1/8 (Petitioner herein). A copy of the said amendment application dated 16.10.2002 has been filed as Annexure-6 to the writ petition. 9. The objection dated 19.10.2002 (Annexure-7 to the writ petition) was filed on behalf of the Respondent No. 1 against the said amendment application dated 16.10.2002 filed on behalf of the Petitioner. 10. By the order dated 28.10.2002, the Prescribed Authority/Civil Judge (J.D.) rejected the said amendment application filed on behalf of the Petitioner, inter alia, on the ground that the said amendment application had been filed with the intention to linger on the case, and further the facts sought to be brought on record by the said amendment application were not so material that the amendment in the said written statement was needed. 11. Thereafter, the Petitioner has filed the present writ petition seeking the reliefs mentioned above. 12. Sri Manish Kumar Nigam, learned Counsel for the Petitioner states that in view of the averments made in the replication dated 5.10.2001 (Annexure-5 to the writ petition), amendment of the written statement became necessary. As such, the learned prescribed authority was not correct in rejecting the amendment application on the ground that it was belated. He further submits that amendments have become necessary in view of the averments made on the behalf of the Respondent No. 1 in the said replication. 13. As such, the learned prescribed authority was not correct in rejecting the amendment application on the ground that it was belated. He further submits that amendments have become necessary in view of the averments made on the behalf of the Respondent No. 1 in the said replication. 13. Sri K. K. Birla, who has filed caveat on behalf of Respondent No. 2 submits that the amendment application has been filed on behalf of the Petitioner merely to linger on the proceedings in the release case which was filed in the year 1988. He further submits that the impugned order has been rightly passed by the learned prescribed authority. Sri Birla has referred to paragraphs 7 and 11 of the replication filed on behalf of the Respondent No. 1 (Annexure-5 to the writ petition) wherein it was, inter alia, stated that photostat copy of the certified copy of the sale deed dated 22.12.1995, which was said to have been executed by Smt. Sita, opposite party No. 1/1, in the said release case, had already been brought on record as Annexure-B to the affidavit No. 226C which had been filed by the Respondent No. 1. Therefore, the contention proceeds, no new averments were brought on record by the said replication, and as such, the said amendment application filed on behalf of the Petitioner was liable to be rejected. 14. I have heard learned Counsel for the parties and have perused the record. 15. Having heard learned Counsel for the parties and having regard to the facts and circumstances of the case, I am of the opinion that the amendment application filed on behalf of the Petitioner could not have been rejected merely on the ground of delay, and the learned prescribed authority ought to have considered the facts and circumstances of the case. As noted above, after decision in the said Civil Writ Petition No. 3663 of 1998 on 3.7.2001, the said replication dated 5.10.2001 was filed on behalf of the Respondent No. 1. On account of the averments made in the said replication dated 5.10.2001, the said amendment application dated 16.10.2002, was filed on behalf of the Petitioner. Therefore, the learned prescribed authority was not justified in rejecting the said amendment application on the ground of delay. The amendments sought could not be said to be immaterial or unnecessary. On account of the averments made in the said replication dated 5.10.2001, the said amendment application dated 16.10.2002, was filed on behalf of the Petitioner. Therefore, the learned prescribed authority was not justified in rejecting the said amendment application on the ground of delay. The amendments sought could not be said to be immaterial or unnecessary. The conclusion of the learned prescribed authority to the contrary was not correct. Therefore, in my opinion, the impugned order dated 28.10.2002 is liable to be quashed. 16. At this stage, Sri K. K. Birla, submits that the matter may not be remanded back to the learned prescribed authority for reconsideration of the amendment matter, and the amendment application filed by the Petitioner seeking to make amendment in the written statement be allowed by this Court itself in order to avoid any further delay in the matter, and further time limit be fixed for deciding the said release application which is pending since 1988. In view of this statement made by Sri K. K. Birla, the amendment application (Annexure-6 to the writ petition) seeking to make amendments in the written statement is allowed. 17. In view of the aforesaid discussion, this writ petition is allowed. The order dated 28.10.2002 (Annexure-1 to the writ petition) passed by the learned Prescribed Authority/Civil Judge (J.D.) Sahaswan, district Badaun, is quashed. The amendment application (Annexure-6 to the writ petition), as mentioned above, is allowed. 18. It is, however, directed that the learned Prescribed Authority/Civil Judge (J.D.) Sahaswan, district Badaun, will proceed to decide the said release case, namely, Misc. Case No. 54 of 1988 expeditiously, preferably within a period of two months from the date of production of a certified copy of this order before him by either of the parties. Learned Counsel for the parties undertake that their respective parties will not seek any unnecessary adjournment in the said release case.