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2009 DIGILAW 3603 (ALL)

Vijay Krishna Srivastava v. Tahira Khatoon

2009-11-26

NARAYAN SHUKLA

body2009
JUDGMENT Hon'ble Shri Narayan Shukla,J. Heard Mr.Manish Mathur, learned counsel for the petitioners as well as Mr.Vimal Mishra, learned counsel for opposite party No.1. 2. The petitioners are aggrieved with the order dated 13th of October, 2009, passed by the Additional District Judge, Faizabad, whereby the petitioners' application for amendment of the written statement has been rejected. 3. Through the application for amendment the petitioners have tried to bring on record the facts that two daughters of the plaintiff are residing in their in-law's house, thus her statement that her two daughters reside in the basement, are false. He has further tried to bring on record the fact that the plaintiff has posed her case that there are large number of members in his inner family, but she herself has opened a Restaurant in the residential room and Hall of the basement portion and her younger son Khurseed Alam has constructed his own house in Avadhpuri Colony, Phase-III, Beniganj, Baharganj (Bahadur Ganj), in which he resides with his wife, which establishes that the plaintiff is not in the need of additional residential space. Further the defendants tried to search another house on rent, but the rent of new house is so high as is beyond their capacity further at the rate of old rent no house is available. 4. The learned counsel for the petitioners submits that so far as the law of amendment of the written statement is concerned, it is settled view of this court as well as the Hon'ble Supreme Court that the court should adopt a liberal approach in permitting such an amendment unless there is a recital of admission made through the written statement, if the court thinks it proper that they are required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. In support of his submission he cited a decision of Hon'ble Supreme Court rendered in the case of Baldev Singh and others versus Manohar Singh and another. 5. He further submits that it is absolutely the discretion of the court to consider the principles of law and material on record to allow the amendment. In support of his submissions he cited a decision of Hon'ble Supreme Court rendered in the case of Usha Balashaheb Swami and others versus Kiran Appaso Swami and others. 6. 5. He further submits that it is absolutely the discretion of the court to consider the principles of law and material on record to allow the amendment. In support of his submissions he cited a decision of Hon'ble Supreme Court rendered in the case of Usha Balashaheb Swami and others versus Kiran Appaso Swami and others. 6. The petitioners submitted the application for amendment at the stage of appeal on 10th of September, 2009, whereas the suit of the plaintiff has already been decreed by means of judgment and order dated 25.4.2009. The petitioners have submitted that since some new facts have come out during the pendency of the case, which are necessary to be brought on record for decision of the case between the parties, they want to amend the written statement. So far as the proposed plea of having another house by the plaintiff as well as running of family Restaurant and using the house in question for commercial purpose is concerned, this fact was already there in paragraph 7 of the written statement. 7. Once these facts were there, the petitioners had an opportunity to lead the evidence in support of their statement, but they have failed to submit any such evidence, as has been discussed in the order itself. The petitioners have also failed to establish that their case is covered under the provisions of Order VI Rule 17 as to why they could not place these facts before the trial court. So far as the plea of availability of one another house in Baharganj (Bahadur Ganj) is concerned, that has been discussed in the judgment of the trial court, but it has been observed by the trial court that the petitioners/defendants failed to produce any evidence in support of their contentions. Since all the facts which are proposed to be brought on record through the amendment have been discussed in the judgment of the trial court, I do not feel it appropriate to allow the application for amendment and send the matter again for evidence at the stage of appeal, therefore, the writ petition is dismissed.