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2007 DIGILAW 104 (UTT)

MOHD. ALI v. ADDL. DISTRICT JUDGE, DEHRADUN

2007-03-13

B.S.VERMA

body2007
JUDGMENT Since both these writ petitions have arisen out the one and the same civil suit between the same parties, therefore, for the sake of convenience, they are being decided by a common judgment. 2. The writ petition No. 1712 of 2001 was initially preferred by one Mohd. Ali, who was arrayed as defendant no. 1 in Civil Suit No. 520 of 1985, Kamruddin and others Vs. Mohd. Ali and others, which was filed by the plaintiffs for partition of the joint property. The petitioner has prayed for issue a writ, order or direction in the nature of certiorari quashing the order dated 2.7.1998 and 11.11.1992 passed by the respondent no. 1 and 2 respectively. By the order dated 11.11.1992, the trial court had allowed the application of the plaintiffs for amendment, paper no. 154-Ka and by order dated 2.7.1998, the revision preferred by the defendant-petitioner has been dismissed. 3. Brief facts giving rise to the present writ petition No. 1712 of 2001 (M/S) are that the respondent nos. 2 to 6 filed Civil Suit No. 520 of 1985 in the court of Civil Judge, Dehradun for partition of the suit property. The suit was contested by the petitioner and other respondents by filing their written statement, copy of which is annexed as Annexure No. 2 to the writ petition. Subsequently, on 7.6.1992, the plaintiffs filed an application for amendment of the plaint, which is annexed as Annexure No. 3 to the writ petition. According to the petitioner, the plaintiff-respondents filed amendment application after seven years. The petitioner-defendant filed objection against the amendment application before the trial court contending that by the proposed amendment, admissions made by the plaintiffs cannot be permitted to be withdrawn, hence the application is liable to be rejected. After hearing both the parties, the learned trial court allowed the amendment application, paper no. 154-Ka vide order dated 11.11.1992. Aggrieved, the petitioner filed Civil Revision No. 135 of 1992 before the Additional District Judge, Dehradun. The revisional court after hearing both the parties, the Revisional Court came to the conclusion that by the amendment, there is no question of withdrawing of admissions made by the plaintiffs. There was mention of the property in the plaint from before and the nature of suit did not change by the amendment. The revisional court after hearing both the parties, the Revisional Court came to the conclusion that by the amendment, there is no question of withdrawing of admissions made by the plaintiffs. There was mention of the property in the plaint from before and the nature of suit did not change by the amendment. Ultimately, the revisional court dismissed the revision vide judgment and order dated 2.7.1998, which gave rise to the Writ Petition No. 1712 of 2001. 4. I have considered the submissions made by the learned counsel for the parties and perused the record. 5. From a bare perusal of the amendment application 154-A, the objections filed by the petitioner-defendant against the said application and the order passed by the learned trial court, it is obvious that the suit no. 520 of 1985 has been filed for partition of joint property. There was mention of the property at the foot of the plaint, which the plaintiffs later-on sought to be included in the partition suit. There is nothing to indicate even from a remote consideration that the plaintiffs ever sought to withdraw their own admissions or to change the nature of the suit by the proposed amendment, therefore, the amendment application was rightly allowed by the trial court vide order dated 11.11.1992 and the revisional court was also justified in rejecting the prayer of the petitioner and the revisional court rightly dismissed the revision and gave a categorical finding that no admission has been withdrawn by the plaintiff by way of amendment. There is no perversity or manifest error on the face of record committed by the two courts below. The writ petition is devoid of merit and must fail. 6. Writ Petition No. 735 of 2002 (M/S) has been preferred by the petitioner Mohd. Akil and two others against the impugned order dated 3.12.2001 passed by the Additional District Judge, IV F.T.C. Dehradun in Civil Appeal No. 94 of 2000, whereby the appellate court had set aside the order dated 25.7.2000 passed by the trial court in Original Suit No. 520 of 1985. 7. Now coming to relevant facts of the Writ Petition (M/S) No. 735 of 2002, it is pertinent to mention that the petitioners along with Kamruddin filed the aforesaid suit in the trial court for partition of joint property. In that suit, after the order dated 11.11.1992 whereby amendment application of the plaintiffs (paper no. 7. Now coming to relevant facts of the Writ Petition (M/S) No. 735 of 2002, it is pertinent to mention that the petitioners along with Kamruddin filed the aforesaid suit in the trial court for partition of joint property. In that suit, after the order dated 11.11.1992 whereby amendment application of the plaintiffs (paper no. 154-A) was allowed, the defendant nos. 1 to 3, who are respondent nos. 2 to 4, filed their additional written statement on 14.2.2000 and the defendants set up a counter claim against the petitioners which has been annexed as Annexure No. 2 whereby a declaratory decree has been sought in their favour. The plaintiffs filed an application on 26.4.2000 (paper no. 179-C) purporting to be under the provisions of Order 8, Rule 6-C read with Section 151 C.P.C. against the filing and admission of additional written statement and the ex-parte order dated 14.2.2000 admitting the additional written statement. 8. The learned trial court after hearing both the parties and after going through the entire material on record had observed that the defendant-respondents had filed their written statement before the court on 3.12.1986 (paper no. 49-A). The issues in the suit were framed on 13.8.1987 and thereafter Issue No. 10 had been decided and the suit was fixed for final hearing from 24.4.1989. The additional written statement/counter claim was filed by the defendants on 14.2.2000 vide paper no. 175-C against the amendment brought in the plaint. It was also observed that the defendants in the additional written statement had also challenged the order dated 2.2.2000 passed by the Chief Judicial Magistrate in Municipal Appeal Nos. 26 of 1999 and 27 of 1999. Ultimately, the trial court found force in the contention of the plaintiffs that the ex-parte order dated 14.2.2000 whereby the additional written statement had been admitted should be recalled and accordingly, the order dated 25.7.2000 was passed. Aggrieved by that order, the defendant-respondents Mohd. Ali and Gulfam Ahmed preferred Civil Appeal No. 94 of 2000 before the Additional District Judge, IV F.T.C. Dehradun, who ultimately allowed the Civil Appeal No. 94 of 2000 and set aside the impugned order dated 25.7.2000. Aggrieved, the plaintiffs have come up before this Court in Writ Petition No. 735 of 2002. 9. Ali and Gulfam Ahmed preferred Civil Appeal No. 94 of 2000 before the Additional District Judge, IV F.T.C. Dehradun, who ultimately allowed the Civil Appeal No. 94 of 2000 and set aside the impugned order dated 25.7.2000. Aggrieved, the plaintiffs have come up before this Court in Writ Petition No. 735 of 2002. 9. The learned counsel for the petitioners at the very outset has raised a legal objection regarding maintainability of regular appeal against an interim order passed by the trial court on 25.7.2000. It has been argued that the regular appeal could not have been entertained by the respondent no. 1 because no decree or final order was passed by the trial court. 10. I have heard rival contentions of learned counsel for both the parties and perused the record. 11. The crux of the matter involved in the present writ petition is whether by the order of the trial court dated 25.7.2000, the order passed by the trial court adversely against the defendants had attained finality. The copy of the order dated 25.7.2000 is annexure no. 4. In this order, the trial court while rejecting the additional written statement/counter claim of the defendants had given freedom to bring separate suit for seeking declaratory relief as had been sought in the counter claim. Thus, it cannot be said that the right of the defendants had been taken away by the impugned order. Admittedly, the order dated 25.7.2000 is interim order in nature. Regular appeal only lies against the final judgment and decree alone. The contention of the learned counsel for the petitioners that the regular appeal under the provisions of Order 41 of the Civil Procedure Code was not maintainable. Even otherwise on merit, no perversity or illegality has been committed by the trial court. 12. In view of the above discussion, the order dated 3.12.2001 passed by the respondent no. 1 is not tenable in the eye of law and is liable to be set aside. The Writ Petition No. 735 of 2002 (M/S) deserves to be allowed. 13. In the result, the Writ Petition (M/S) No. 1712 of 2001 is hereby dismissed with no order as to costs. 14. The Writ Petition (M/S) No. 735 of 2002 is hereby allowed. The impugned order dated 3.12.2001 passed by the Additional District Judge, IV F.T.C. Dehradun in Civil Appeal No. 94 of 2000 is set aside. Costs easy. 13. In the result, the Writ Petition (M/S) No. 1712 of 2001 is hereby dismissed with no order as to costs. 14. The Writ Petition (M/S) No. 735 of 2002 is hereby allowed. The impugned order dated 3.12.2001 passed by the Additional District Judge, IV F.T.C. Dehradun in Civil Appeal No. 94 of 2000 is set aside. Costs easy. 15. The Additional Civil Judge (Senior Division) Dehradun is directed to decide the Civil Suit No. 520 of 1985 expeditiously on merit in accordance with law as early as possible.