Brajendra Sharan @ Prakash {Objection Filed} v. VIII A. D. J. , Rai Bareli
2014-09-25
DEVENDRA KUMAR UPADHYAYA
body2014
DigiLaw.ai
JUDGMENT Devendra Kumar Upadhyaya,J. This writ petition seeks to challenge the order dated 20.09.2002 passed by 6th Additional District Judge, Raebareli whereby revision petition preferred by the opposite parties against the order dated 30.04.2001 allowing the amendment application has been set aside. 2. The facts of the case, as culled from the pleadings available on the record of petition, are that in December, 1996, the petitioners filed a suit for permanent injunction against the opposite parties restraining them from interfering in their peaceful possession over the property in question. The suit was filed with the plaint allegation that one Smt Rameshwari Devi Sinha, widow of Kunwar Bahadur Sinha had died issuless. She was the Principal of an institution. After her retirement, she established a girls school in the year 1946 in the memory of her deceased husband. The plaint allegations further were that through a registered gift deed dated 26.09.1961, Rameshwari Devi Sinha gifted the entire building along with the land mentioned in the gift deed in favour of education department. On the basis of said gift deed, name of Donee was also recorded in the revenue records. It has also been alleged in the plaint that Smt Sinha also had her residential house in the school premises but since the accommodation was found short, she constructed another house with which respondents did not have any concern as it was being used by Smt Sinha not only for her residential purpose but also as Dharamshala and Goshala. It has further been pleaded that whatever property was gifted by Smt Sinha was separated by raising boundary wall. The property gifted by Smt Sinha in favour of education department comprises of plot nos. 441 and 451. The plaint allegations also contain assertion that Smt Sinha executed a registered gift deed in favour of petitioner no.2-Society on 28.11.1994 and further that she also executed a power of attorney in favour of petitioner no.1 on 28.05.1988. It has further been pleaded in the plaint that the petitioners have made improvements and have also raised construction; and that they are in possession of the said property and further that their names were also recorded in the revenue records over the property gifted to them. 3.
It has further been pleaded in the plaint that the petitioners have made improvements and have also raised construction; and that they are in possession of the said property and further that their names were also recorded in the revenue records over the property gifted to them. 3. The petitioners also moved an application under Order XXXIX Rule 1 and 2 of the CPC seeking grant of an ad-interim injunction restraining the defendants (opposite parties herein) from interfering in their possession. The trial court, accordingly, framed issues on the basis of pleadings and directed the petitioners to clarify as to which property was gifted by Smt Sinha to the plaintiffs through will and gift deeds dated 30.10.1996 and 28.11.1994. The said order was passed on 01.12.1998. In pursuance of the order dated 01.12.1998, the plaintiffs moved an application under Order VI Rule 17 and Order I Rule 10 read with Section 151 of CPC seeking amendment in plaint to clarify the pleadings as directed by the learned trial court. The said application was contested by the defendants and the learned court allowed the application by passing the order dated 30.04.2001 against which the defendants preferred a revision petition which was allowed by the order dated 20.09.2002 by the learned Additional District Judge, Raebareli. It is this order dated 20.09.2002 passed by the learned Additional District Judge which is the subject matter of challenge to the instant petition. 4. Learned counsel for the petitioners has vehemently argued, while defending the order dated 30.04.2001 passed by the learned trial court, that revisional court has wrongly recorded a finding that even the persons, against whom no cause of action had accrued, have been sought to be impleaded unwarrantedly and further that by the amendment, the property in respect of which cause of action has accrued, is also being sought to be changed and certain properties are being attempted to be included as suit property regarding which no cause of action had accrued. Learned Senior Advocate, arguing on behalf of the petitioner, has submitted that the said finding arrived at by the learned District Judge is absolutely erroneous and is based on complete misreading of the application moved by the plaintiffs seeking amendment.
Learned Senior Advocate, arguing on behalf of the petitioner, has submitted that the said finding arrived at by the learned District Judge is absolutely erroneous and is based on complete misreading of the application moved by the plaintiffs seeking amendment. He has further stated that application for amendment was moved in compliance of the order dated 01.12.1998 whereby learned trial court had required the plaintiffs to clarify as to which property is being claimed on the basis of will dated 30.10.1996 and which property is being claimed on the basis of gift deed dated 28.11.1994. Thus, the argument is, that since the amendment application was moved only with a view to ensure compliance of the order dated 01.12.1998 passed by the learned trial court, hence the learned revisional court below has erred in law in allowing the revision petition by giving findings that the amendment sought will change the nature of suit property. 5. On perusal of the record, what transpires is that the suit for permanent injunction was filed in respect of property described in the plaint which makes a mention of three properties in dispute. All the three properties in dispute have been described by the boundaries, as is apparent from perusal of the plaint. However, the learned trial court passed an order on 01.12.1998 observing therein that it is not clear from the averments made in the plaint as to which property is being claimed on the basis of will dated 30.10.1996 and which property is being claimed through gift deed dated 28.11.1994. Accordingly, the plaintiffs were directed to clarify the same through amendment in the plaint. In pursuance of the order dated 01.12.1998, the amendment application was moved by the plaintiffs. However, from perusal of the amendment application dated 17.02.1999 moved by the plaintiffs before the court below, it is clear that amendment sought was not confined to the extent of clarification which was sought by the learned trial court while passing the order dated 01.12.1998, rather the said application contains averments in a manner which, in my considered opinion, changed the very nature of suit inasmuch as the suit property was sought to be added and further that certain allegations, which are at variance with the plaint allegations, were also sought to be added. 6.
6. So far as the submission made by learned counsel for the petitioners that amendment application was moved pursuant to the order passed by the learned trial court on 01.12.1998 is concerned, there cannot be any quarrel to the same. 7. However, what needs to be examined in this case is as to whether the amendment application moved by the plaintiffs before the learned trial court was only with a view to clarify the queries of the court contained in the order dated 01.12.1998 or the amendment sought travelled beyond the aforesaid queries of the learned trial court. Only clarification, which was required to be given by moving appropriate application seeking amendment of the plaint in terms of the order dated 01.12.1998 was in relation to the properties which were being claimed by the plaintiff no.1 through will deed dated 30.10.1996 and the properties which were being claimed by the plaintiff no.2 on the basis of gift deed dated 28.11.1994. The said clarification appears to have been sought by the learned trial court for the reason that from the plaint allegations, it was not clear as to which property is being claimed on the basis of will deed and which property is being claimed on the basis of gift deed. 8. Thus, amendment, sought by the plaintiff, in my considered opinion, has gone beyond the scope of amendment permitted by the learned trial court by means of order dated 01.12.1998 for the reason that amendment was not sought by the plaintiffs on their own, rather it was sought on the directions given by the learned trial court by passing the order dated 01.12.1998. 9. So far as the amendment which confine themselves to the clarification sought by the learned trial court by means of order dated 01.12.1998 are concerned, there is no ambiguity in this regard and such amendments could have been legally permitted to be incorporated. However, any amendment beyond the scope of the order dated 01.12.1998 was impermissible, specially for the reason that the same not only changes the suit property but also changes the nature of the suit. Learned revisional court has, thus, given categorical finding that amendment sought by the plaintiffs not only changed the nature of suit property but also changed the nature of suit itself. 10. Thus, I do not see any illegality in the order dated 30.04.2001 passed by the revisional court.
Learned revisional court has, thus, given categorical finding that amendment sought by the plaintiffs not only changed the nature of suit property but also changed the nature of suit itself. 10. Thus, I do not see any illegality in the order dated 30.04.2001 passed by the revisional court. However, keeping in view the order dated 01.12.1998 passed by the learned trial court, the plaintiffs are hereby permitted to move another application seeking amendment of the plaint in the light of the said order dated 01.12.1998 passed by the learned trial court. If any such application is moved, the same shall be considered and disposed of by the learned trial court by passing an appropriate order in accordance with law after affording opportunity of filing objection and hearing to the defendants. 11. In terms of the aforesaid observations and directions, the writ petition is disposed of. 12. However, there will be no order as to cost.