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2009 DIGILAW 497 (ALL)

GOVIND PRASAD v. UPPER DISTRICT JUDGE, SULTANPUR

2009-02-12

A.N.VARMA

body2009
JUDGMENT A.N. VARMA, J.--The petitioner who is plaintiff before the Trial Court instituted a suit for cancellation of sale deed against opposite party No.3. During the pendency of the suit the petitioner was dispossessed from over the property in question. An application under Order VI, Rule 17, C.P.C. was preferred by the petitioner for amendment of the plaint. The Trial Court vide order dated 11.9.2008 rejected the application against which the petitioner approached the Revisional Court. Vide judgment and order dated 20.12.2008 the revision too was dismissed. 2. Learned Counsel for the petitioner submitted that the Courts below committed a manifest error of law in rejecting the petitioner's application for amendment. As per his version it was during the pendency of the suit that the petitioner was dispossessed. The amendment sought to be introduced only was with a view to bring to the notice of the Court the subsequent event. As per his version, by proposed amendment nature of the suit is not altered, as such, the amendment ought to have been allowed. 3. Learned Counsel for the opposite parties in opposition submitted that the petitioner was aware of the fact that he had been dispossessed but still on various dates having been fixed, at no point of time did he inform the Court regarding dispossession. It was also asserted that after a lapse of about two years the application for amendment followed. According to him, cross-examination of both the sides is already complete and when the matter was ripe for hearing that application was preferred. 4. It is settled proposition that amendment can be allowed at any stage of the proceedings so far as it does not change the fundamental character of the suit. By proposed amendment the petitioner only sought relief of mandatory injunction to be added in the plaint. 5. In view of the fact that the petitioner was alleged to have been dispossessed during the course of the proceedings, therefore, the amendment was necessary. Even otherwise, subsequent event which occur during the pendency of proceedings are required to be brought to the notice of the Court so as to appropriately resolve the controversy involved. 6. In view of the fact that the nature of the suit is not changed by the proposed amendment, the Courts below in right perspective ought to have allowed the application for amendment. 6. In view of the fact that the nature of the suit is not changed by the proposed amendment, the Courts below in right perspective ought to have allowed the application for amendment. In not doing so, they have fallen in grave error. 7. In view of the aforesaid, the writ petition succeeds and is allowed. The judgment and order dated 20.12.2008 as well as dated 11.9.2009 passed by opposite parties No. 1 and 2 are hereby quashed. The application for amendment stands allowed. The proposed amendment shall be incorporated by the petitioner in the plaint within a week and the suit thereafter shall proceed and shall be decided expeditiously say within a period of six months. Writ Petition Allowed.