Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 98 (UTT)

Pabetri Devi v. Union of India

2014-03-20

ALOK SINGH

body2014
Judgment Alok Singh, J. Plaintiff/appellant has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 20.09.2005, passed by the Appellate Court/Additional District Judge, Dehradun in Civil Appeal No. 68 of 2002 whereby application moved by the plaintiff/appellant seeking amendment in the plaint giving complete and correct details of the property in dispute and seeking permission to enclose the site map alongwith the plaint was rejected. 2. Undisputedly, suit filed by the plaintiff/appellant was dismissed by the Trial Court on the ground that property in question is not identifiable for want of correct and compete description of the property in question. During the pendency of the appeal, one application was moved by the plaintiff, paper No. 43-C, to summon record of OS No. 44 of 1985, Shri Vinay Kumar Vs. M.N. Notiyal stating that property in question in the present suit was also involved in the previous suit, therefore, to find out the correct description of the property in question alongwith the cite map file of O.S. No. 44 of 1985 be summoned. 3. However, application 43-C was rejected by the Trial Court saying that plaintiff may obtain certified copy of the plaint and may place it on record of the appeal. 4. However, amendment sought by the plaintiff appellant to give complete and correct description of the property in question alongwith the request to enclose the cite map alongwith the plaint was rejected on hyper technical ground that plaintiff/appellant could not prove that despite due diligence why same was not mentioned in the plaint. 5. Undisputedly, property involved in the present case is same and identical to the property mentioned in the plaint of O.S. No. 44 of 1985. Learned Appellate Court, at one place, has permitted the plaintiff/appellant to place certified copy of the plaint of O.S. No. 44 of 1985 on the record and yet by the impugned order has declined to permit the plaintiff to correct the description of property in dispute as mentioned in the plaint of O.S. No. 44 of 1985. 6. Belated amendment which would amount to change of cause of action and nature of the suit ordinarily should not be allowed. However, if amendment is to clarify the pleadings and to give correct and complete description of the property in dispute should not be declined on hyper technical ground. 7. 6. Belated amendment which would amount to change of cause of action and nature of the suit ordinarily should not be allowed. However, if amendment is to clarify the pleadings and to give correct and complete description of the property in dispute should not be declined on hyper technical ground. 7. Having perused the application moved by the plaintiff / appellant before the appellate court and entire record, I find that plaintiff wanted to give correct description of the property in question alongwith site map. Therefore, amendment sought is liable to be allowed. 8. Consequently, writ petition is allowed. Impugned order passed by the appellate court is set aside. 9. Amendment application moved by the petitioner before the appellate court stands allowed. Let necessary amendment be incorporated within 15 days. Defendant/respondents herein may file additional written statement to the amended plaint within next two weeks. Since appeal was filed in the year 2002, therefore, appellate Court is requested to explore every possibility to decide the appeal at the earliest, in any case, within three months from the date certified copy of this order is placed on the record. Learned Appellate Court is further requested not to grant any unnecessary adjournment to either of the parties. 10. No cost.