Om Prakash vs IXth Additional District Judge

Ritu Raj Awasthi, J.—Heard learned Counsel for the Petitioner as well as Mr. Surya Prakash Singh, learned Counsel appearing for opposite parties No. 2 and 3.

The writ petition has been filed challenging the order dated 10.4.2009 passed by the Appellate Court in Civil Appeal No. 10 of 2000, whereby the application paper No. 195 - A/2 for amendment in the written statement has been allowed with cost. The additional evidence filed by paper No. 198 - C/1 is admitted on record as additional evidence. Application paper No. 197 - C/2, was allowed with cost.

Learned Counsel for the Petitioners submitted that with respect to five plots in question a suit for specific performance was filed, which was decreed in favour of the Petitioners by judgment and order dated 18.12.1999. Against the said judgment, the aforesaid appeal was preferred by the opposite parties. During the pendency of the said appeal when the case was fixed for judgment, the opposite parties have preferred an application for amendment in the written statement along with an application for adducing additional evidence.

Learned Counsel for the Petitioners contends that the said application was liable to be rejected as it intend to change the nature of the controversy involved and also on the ground of being moved with undue delay at the stage when the case was fixed for judgment.

The main contention of the learned Counsel for the Petitioner is that the boundaries of the plots in question were not changed by the consolidation proceedings and therefore, the amendment application was misconceived.

Learned Counsel for the opposite parties submitted that during the pendency of the said appeal, the consolidation proceedings had taken place, in which the numbers of the plots in question were changed and the boundaries were also changed. The opposite parties, as soon as came to know about the said fact, had moved the amendment application without any delay before the court concerned for amending the written statements. It is further submitted that the said amendment was necessary to adjudicate the controversy involved in the case.

I have considered various submissions made by the parties'' counsel.

It is the admitted fact that during the pendency of the appeal, the consolidation proceedings had taken place, in which number allotted to the plots in question were changed. The only dispute between the parties is with respect to as to whether the boundaries of the plots in question were changed during the consolidation proceedings or not. It is also admitted that the said appeal was pending and the same was fixed for judgment.

I am of the considered opinion that the amendment can be moved at any stage and it has to be considered in the facts and circumstances of the case. The Appellate Court has considered the submissions made by the parties counsel with respect to the said amendment application and has come to the conclusion that the application moved for amendment requires to be allowed as an additional documentary evidence, which is sought to be submitted, relates to C.H. Forms - 41 & 45, final village map and copy of C.H. Form - 23, which are relevant papers and these were issued recently in the month of January, 2009 and were filed on 21.2.2009. The court has come to the conclusion that it can not be said that these papers are being filed deliberately at the belated stage. These papers have been filed in support of the amendment application i.e. paper No. 195 - A/2.

Therefore, I do not find any illegality or infirmity in the impugned order. The evidence can be considered by the court below including the question whether the boundaries of the plots in question were changed or not. The parties to the dispute would be at liberty to make their submissions before the appellate court. There is No. reason for this Court to come to the conclusion otherwise.

In this view of the matter, the writ petition is dismissed.

Interim order, if any, stands discharged.