Dharam Nath Pandey @ Sushil Kumar Pandey and Others vs Prabhunath Pandey and Others

R.N. Prasad, J.—The civil revision has been filed against the order dated 2.12.2004 passed by Subordinate Judge IX, Gopalganj in Title Suit No. 33/90, whereby the amendment petition filed by defendant Nos. 3 and 4 for amendment of the written statement has been allowed. Opposite Party Nos. 1 and 2 filed the abovementioned suit. The petitioners were defendants in the suit. There were other defendants who have been made opposite party Nos. 4 to 94. The defendants including the petitioners appeared in the suit. The defendants filed written statement. Defendant Nos. 3 and 4 filed an application for amendment of the written statement which has been allowed by the order impugned. The petitioners, who were co-defendants in the suit, have filed the revision petition against the order of amendment. It has been admitted by the learned counsel for the petitioners that as yet the suit has not been taken up for hearing. It has also been admitted that even the amended C.P.C. which came into effect from 1.7.2002, does not prohibit such amendment. A question was raised as to whether the defendant-petitioners could challenge the order of amendment which was passed at the instance of the other defendants. Learned counsel for the petitioners could not be able either to show any provision of law or any decision pronounced by the Court to substantiate the question. However, he drew my attention to a decision in the case of Miss K. Masih vs. Baptist Union of North India & Ors., 1993(1) BLJ 737, to show the dispute arising with respect to evidence adduced by the co-plaintiff, in the circumstance, the Court has held, "Whether the evidence of P.W. 2 may be accepted or not is for the trial court to determine. In my opinion, a case where there are more plaintiffs than, one plaintiff who wants to lead evidence contrary to the pleadings and the relief prayed for cannot be allowed to continue as plaintiff and shall have to be transposed as defendant. No provision of C.P.C, was brought to my notice to show that if this procedure is adopted, it shall be contrary to any specific provision of C.P.C. No decision contrary was cited at the Bar. Court can and when situation arises must find out procedure for advancement of justice. It is, therefore, ordered that if any of the plaintiffs lead evidence contrary to the pleadings and relief prayed for in the plaint, the court below shall transpose such plaintiff as defendants".

In the instant case there is no question of leading evidence contrary to the pleadings rather the question is with respect to amendment of the written statement which has been allowed at the instance of defendant Nos. 3 and 4, which had been challenged by the co-defendants-petitioners. Since the petitioners have relied upon the decision, as indicated above, it is for the petitioners to proceed in accordance with law. The civil revision is, thus, dismissed.