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2014 DIGILAW 113 (PAT)

Parmeshwari Yadav v. Most Budhiya Devi

2014-01-23

MUNGESHWAR SAHOO

body2014
Order Heard learned counsel Mr. Ajay Kumar Singh appearing on behalf of the petitioners, learned counsel Mr. Pramod Kumar Mishra appearing on behalf of the respondent nos.1 to 8 and learned counsel Mr. Atal Bihari Pandey, A.C. to G.P.22, appearing on behalf of the respondent no.9 (State of Bihar). 2. By the impugned order dated 09.09.2011 the learned Additional District Judge-I, Saharsa has rejected the amendment application filed by the petitioners in Title Appeal No.27 of 2006. 3. It appears that the plaintiffs-petitioners filed the suit for declaration of title and recovery of possession of the suit property and further prayed that the revisional survey record of right in the name of the defendant is wrong, illegal and not binding. The suit was dismissed after trial. The plaintiffs filed title appeal before the court below. During the pendency of the appeal the entry made in the name of the defendant was set aside by the Revenue Court, therefore, the plaintiffs-appellants filed the application for amendment of the plaint praying for deleting that relief contained in paragraph 17(Gh). The court below has rejected this prayer without considering the fact that the plaintiffs are not praying for the relief which has subsequently been infructuous because of the fact that the relief, which they have claimed, has already been granted by the Revenue Court. The court below has also not considered Order II Rule 2 of the Code of Civil Procedure. 4. It is settled principles of law that the plaintiff is entitled to relinquish any portion of his claim. He cannot be insisted upon to pray for particular relief. Further, the appellate court has the same jurisdiction as that of the trial court in view of Section 107 of the Code of Civil Procedure and it is settled principles of law that appeal is continuation of the suit. In the present case, there is no question of any prejudice to the defendants-respondents arises. It is also settled principles of law that on the ground of delay the amendment cannot be refused, particularly when in the present case the plaintiffs are relinquishing their claim and not bringing on record any new fact. 5. In view of the above facts and circumstances of the case, in my opinion, the learned court below has not exercised the jurisdiction vested in it by law and rejected the application in the manner not permitted by law. 5. In view of the above facts and circumstances of the case, in my opinion, the learned court below has not exercised the jurisdiction vested in it by law and rejected the application in the manner not permitted by law. Accordingly, this writ application is allowed. The impugned order is set aside and the amendment application filed by the plaintiffs-petitioners is allowed.