Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2365 (ALL)

Shamim UI Hasan v. Nadeem

2015-08-12

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. – Heard Sri M.A. Qadeer, learned senior counsel assisted by Sri Mohd. Hisham Qadeer, learned counsel for the revisionist and Sri Lalit Kumar, learned counsel for the opposite party. 2. This revision has been filed against the order dated 28.4.2015 passed by the Additional District Judge, Court No. 7, Moradabad, by which revisionist's application no. 134-C filed under Order 6, Rule 17 of the Code of Civil Procedure seeking insertion/amendment of paragraph no. 21 (ka) and (kha) has been rejected. 3. The facts giving rise to this case are that the plaintiff (opposite party no. 1) is the son of defendant no. 1 (revisionist) and the defendant no. 2 (opposite party no. 2) is the brother of defendant no. 1. The plaintiff - opposite party no. 1 filed suit seeking declaration of the property in the suit of his own on the basis of will deed dated 18.7.1991 executed by the grandfather of the plaintiff. The aforesaid suit was filed on 30.5.2006, which was numbered as Original Suit No. 388 of 2006 (Nadeem v. Shamim Ul Hasan and others). The applicant (defendant no. 1/father) filed written statement on 12.10.2011 and the defendant no. 2 filed his written statement on 1.10.2009. On 26.9.2014, the revisionist-defendant no. 1 filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking following amendment in the plaint: ^^21 d & ;g fd eqfLye fof/k vuqlkj dksbZ Hkh eqfLye O;fDr vkoklh; lEifRr ds 1@3 Hkkx ls vf/kd Hkkx dks olh;r ugha dj ldrk gS vkSj bl dkj.ko'k oknh iz'uxr ds vk/kkj ij fookfnr edku esa 1@3 Hkkx ls vf/kd Hkkx ds lEcU/k esa edku esa LokfeRo lEcU/kh vf/kdkj Dyse ugha dj ldrk gSA vkSj bl izdkj ls oknh fookfnr edku esa 1@3 Hkkx dk Lokeh gS vkSj 2@3 Hkkx ds Lokeh izfroknhx.kA 21 [k & ;g fd ;fn jk; vnkyr esa oknh }kjk iznhi flag gksuk u ik;k tk;s rc izfroknhx.k vius firkth dh nLrjkth /kekZ/kark }kjk fookfnr edku ds la;qDr Lokeh gSA** 4. To the aforesaid application, objection has been filed stating therein that trial has commenced and the present amendment has been sought only with a view to delay the proceeding of the suit. To the aforesaid application, objection has been filed stating therein that trial has commenced and the present amendment has been sought only with a view to delay the proceeding of the suit. The trial court, after considering the rival submissions and taking note of the amendment, which was with respect to execution of the will of the entire property, alleging that no Muslim can execute a will of more than ?rd of the property, has rejected the amendment application. 5. It is not in dispute that the suit was filed in May, 2006 and the written statement was filed on 12.10.2011. The contents of the amendment sought, were very well in the notice of the applicant, but it was not stated in the written statement, for about three years and by present application, this is sought to be inserted. 6. Sri Qadeer, learned senior counsel submits that earlier, this point could not be raised because of the lack of advice. The Apex Court in the case of Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usmain Habib Dhuka and Others ( 2013 (9) SCC 485 ) has held that no amendment can be permitted at the belated stage after commencement of the trial on the ground that the applicant was not advised by his counsel at the initial stage. 7. Proviso to Order 6, Rule 17 of the Code of Civil Procedure provides that no amendment can be permitted after trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not sought the amendment before commencement of the trial. 8. From the perusal of the application, it does not transpires that any reason for not filing the amendment application earlier has been stated. 9. In view of the aforesaid fact, I do not find either any jurisdictional error or failure to exercise the jurisdiction vested in the court while passing the order challenged through this Revision. The revision is dismissed. However, the point being legal one, can be raised at any stage as and when it is required. Revision dismissed.