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2018 DIGILAW 1578 (ALL)

PUSHPLATA SAXENA v. SHAKUNTALA SAXENA

2018-07-19

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Sri Manish Tandon, learned counsel for the plaintiffs-petitioners and Sri Neeraj Agrawal, learned counsel for the defendants-respondents. 2. Plaintiffs-petitioners are assailing validity of the revisional order dated 16.4.2018 passed by Additional District Judge, Court No. 2, Kanpur Nagar in Civil Revision No. 40 of 2017 (Smt. Shakuntala Saxena and others v. Smt. Pushplata Saxena and others) whereby amendment under Order 6 Rule 17 C.P.C. moved by plaintiffs-petitioners, which was allowed by trial Court has been set aside by the revisional Court. 3. The brief matrix for adjudicating the controversy in hand are reproduced herein. The Original Suit No. 396/7 of 1987 for declaration-cum-partition had been instituted by husband of first petitioner, namely, Sri Raj Narayan Saxena, who happens to be the father of petitioner No. 2 to 4 to the extent of half share of house No. 2/359, Nawabganj, Kanpur Nagar and house No. 2/362, Nawabganj, Kanpur Nagar. Initially there was deficiency in the suit and the same was removed in the year 2005 and the regular number was allotted as Suit No. 589 of 2005. During pendency of the suit, Sri Raj Narayan Saxena-plaintiff died and the petitioners were duly substituted as legal heirs of late Raj Narayan Saxena. Sri Roop Narayan Saxena and Sri Vinod Saxena who were contesting defendants were also died and were duly substituted by their legal heirs arrayed as respondent No. 1 to 3. The family pedigree, as mentioned in para 2 of the plaint, which has been appended as Annexure 1 to the writ petition, is reproduced herein. Chhabiley Ram (1) (2) (3) Ram Narain (died issueless in 1940-41) Sheo Narayan (died in or about 1910-12) Ganpat Rai (died in 1970-71) Roop Narayan defen. No. 1 Raj Narayan Plaintiff Vinod Kumar defendant No. 2 4. Late Chhabiley Ram, great grandfather of deceased plaintiff had three sons, namely, Sri Ram Narain, Sheo Narayan and Sri Ganpat Rai with whom he constituted a joint hindu family headed by himself as Manager and Karta of the family. The deceased plaintiff’s grandfather, namely, Sri Sheo Narayan had one son, namely, Sri Roop Narayan, defendant No. 1 and after his demise, the entire assets fell in the hands of Ganpat Rai. It is also claimed that with consent and mutual understanding, Ram Narain managed the entire affairs of moveable and immovable properties as Karta. The deceased plaintiff’s grandfather, namely, Sri Sheo Narayan had one son, namely, Sri Roop Narayan, defendant No. 1 and after his demise, the entire assets fell in the hands of Ganpat Rai. It is also claimed that with consent and mutual understanding, Ram Narain managed the entire affairs of moveable and immovable properties as Karta. It is also averred that Sri Ram Narain by his own source purchased two houses No. 2/306 and 2/309 (new No. 2/359 and 2/362) at Nawabganj, Kanpur. The other details are not necessary in adjudicating the matter. However, suit for decree of declaration to the effect that the plaintiffs are entitled and are the bona fide owners and title holders of the properties specific extent right, title and interest of the plaintiffs are mentioned in Schedule ‘A’ in suit to the extent of half share per-capita and the Deed of Transfer executed by defendant No. 1 & 2 in favour of defendant No. 3 dated 11.3.1987 be also adjudged null and void and illegal in operative to Schedule ‘A’. 5. The suit was contested by defendant/respondent No. 1 by way of filing written statement on 28.4.2012. This is admitted situation that prior to moving an amendment even the issues were not framed and the trial was not even commenced and no evidence was yet to be led by the parties. It is also clear that during the pendency of the suit, the Will, which was executed by Ganpat Rai, was found by his own daughter, namely, Smt. Sarojini Devi in relation to the disputed house and she filed an affidavit in the suit, narrating the circumstances. Consequently, the petitioners filed an amendment application Paper No. 210-Ka, by which, they tried to amend the plaint and tried to bring on record that late Ganpat Rai who was managing house No. 2/359 and 2/362, had executed a Will on 10.6.1968 wherein the house No. 2/359 was given to Raj Narayan-plaintiff and house No. 2/362 was given to Vinod Kumar/defendant No. 2. Through amendment, it has also been claimed that the plaintiff is relinquishing his right from house No. 2/362 and is claiming right only upon house No. 2/359 and also sought in the prayer that mandatory injunction for vacating the premises be granted against the defendants. The plaintiff as well as contesting defendant belongs to same pedigree and are residing in house No. 2/359, Nawabganj, Kanpur Nagar. The plaintiff as well as contesting defendant belongs to same pedigree and are residing in house No. 2/359, Nawabganj, Kanpur Nagar. The detailed objection to the amendment was filed by defendant-respondent. Finally, the learned trial Court has allowed the amendment by order dated 10.1.2017 with a cost of Rs. 1,000/- and the amendment was carried out on 25.1.2017 and the same has been assailed by the defendant-respondent in Civil Revision No. 40 of 2017 and the revisional Court by order impugned has set aside the order passed by the trial Court. Aggrieved by the same, the present writ petition has been preferred. 6. Sri Manish Tandon, learned counsel for the plaintiffs-petitioners submits that the plaintiffs-petitioners, by way of amendment, were only interested to bring to the notice of the trial Court the subsequent facts and after amendment of the plaint, the defendants-respondents had adequate opportunity to file written statement and had also right to raise all their defence. He submits that once the trial Court by order dated 10.1.2017 allowed the amendment with cost immediately, plaintiffs-petitioners had deposited the cost, even the amendment was also carried out on 25.1.2017 whereas the trial Court has also proceeds to observed that the amendment sought by the plaintiffs-petitioners is not going to change the nature of the suit and the relief claimed in the amendment is not time barred as decree of eviction has been sought against the defendants and moreover, the trial has not commenced, then in such circumstances, the trial Court has to consider only one aspect whether the order in question would cause failure of justice or irreparable injury to the defendants. He submits that it is almost inconceivable how mere amendments of pleading could possibly cause failure of justice or irreparable injury to any party. Contrary refusal to permit the such relevant amendment would cause miscarriage of justice. 7. He further vehemently contended that in view of the judgment passed by Apex Court in Prem Bakshi and others v. Dharam Dev and others, 2002(1) ARC 303 and by this Court in Rishi Raj Patel and another v. Brij Bihari Singh, 2014(2) ARC 859 , even the revision was not maintainable. 7. He further vehemently contended that in view of the judgment passed by Apex Court in Prem Bakshi and others v. Dharam Dev and others, 2002(1) ARC 303 and by this Court in Rishi Raj Patel and another v. Brij Bihari Singh, 2014(2) ARC 859 , even the revision was not maintainable. Under the present facts and circumstances, the revisional Court without recording any finding and in most arbitrary manner only recorded conclusion relying various judgments passed by the Apex Court and as such the order impugned dated 16.4.2018 is unsustainable and the same is liable to be set aside. 8. Per contra, Sri Neeraj Agrawal, learned counsel for the contesting defendants-respondents has vehemently opposed the writ petition and submits that the suit in question is pending since 1987 even the regular number has been allotted in the year 2005 and at this belated stage, the amendment was uncalled for. The revisional Court has rightly proceeded to set aside the order of the trial Court and on the basis of amendment, an attempt has been made to change the nature of the suit. Relief is also being hit by Limitation Act and as such, the revisional Court’s order is liable to be upheld by this Court and the present writ petition is liable to be dismissed. 9. In this backdrop, the Court has examined the record and the order impugned and finds that at this stage, this Court has to see whether the order in question has caused failure of justice or irreparable injury to the plaintiffs-petitioners. By the order impugned passed by the revisional Court it is also inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any of the party in the backdrop wherein even the trial has not commenced. The pleadings are with effect that even the written statement has not been submitted. No doubt the suit is pending since long time but the same is at the very initial stage. The Court is of the considered opinion that the trial Court has rightly proceeded in the matter and allowed the amendment with cost and the same had already been carried out well within time as reflected from Annexure 1 to the writ petition and thereafter the revision has been filed. The Court is of the considered opinion that the trial Court has rightly proceeded in the matter and allowed the amendment with cost and the same had already been carried out well within time as reflected from Annexure 1 to the writ petition and thereafter the revision has been filed. The Court is of the considered opinion that the refusal to permit the amendment sought for in the present situation would result in miscarriage of justice. Merely after amendment of the pleadings would not amount to decisions on the issue involved, such amendment would serve only advance notice to another side as to the plea which a party might take, hence, it cannot be envisaged a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party. In the present case, the plaintiffs-petitioners wanted to bring to the notice of the trial Court, the subsequent facts and after the amendment in the plaint which was admittedly carried out after deposit of cost, the defendants-respondents would definitely get an opportunity to file written statement and would be able to place their defence. Finally, if the suit is decided against the defendants they would be chance to take up these points before the appellate Court and in such situation, it cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice. 10. Once, the Court has proposed to pass the order allowing the writ petition, then learned counsel for the defendants-respondents states that the direction may be issued to Court concerned to decide the suit in question expeditiously. 11. In view of the aforesaid discussion, the order impugned dated 16.4.2018 is unsustainable and accordingly, the same is set aside. The writ petition is allowed. However, the Court concerned is directed to expedite the proceeding of aforesaid Original Suit No. 396/7 of 1987 (regular Suit No. 589 of 2005) and conclude the same, in accordance with law, as expeditiously as possible and preferably within two year from the date of production of certified copy of this order, without granting unnecessary adjournment to either of the parties.