Shiv Kumar Rai vs Smt. Bindumati Rai

Ram Surat Ram (Maurya), J.—Heard Sri Shyam Sunder Tripathi for the petitioner and Sri Rakesh Pande along with Sri Prashant Rai for the caveator.

The petition has been filed against the order of Civil Judge (Senior Division) date 21.3.2016 rejecting application (496A2) filed by the petitioner for amendment in written statement and the order of District Judge dated 1.4.2016. dismissing the revision of the petitioner against the aforesaid order.

Civil Suit No. 63 of 1997 was filed by Smt. Bindumati Rai against the petitioner for permanent injunction restraining the petitioner from interfering in her possession over the land in dispute. In this suit the petitioner appeared and filed a written statement/counter claim. The suit is at the stage of cross-examination of DW-2. At this stage,the petitioner filed an application for amendment of Written Statement/counter claim. By the proposed amendment the petitioner sought to add new facts in paragraphs 20A and 20B of the Written Statement to the effect that part of disputed land is plot No. 267 area, 224 kadi, which is in the shape of banjar land and since the petitioner has sought declaration of right, title and interest in plot No. 267 Town Area, Ghosi, district Man and State of U.P. being necessary parties be impleaded to remove the defect of non joinder of parties. The Trial Court by order dated 21.3.2016 rejected the application holding that proposed amendments are not necessary for deciding the controversy and the amendment application has been filed only to delay the decision in the suit. The revision filed by the petitioner against the aforesaid order has been also dismissed.

The Counsel for the petitioner submits that in view of Order 7, Rule 3 , CPC the petitioner is required to disclose description of the subject matter of dispute. The proposed amendment is mere description of property as required under Order 7, Rule 3 , CPC, the petitioner being in possession of the property is bound to give description of the property. Therefore, proposed amendment ought to have been allowed but it has been illegally rejected. He has also relied upon a judgment of Supreme Court reported in AIR 2003 SC 643 (Pratibha Singh v. Shanti Devi Prasad) in which Supreme Court has directed to amend the plaint by adding description of the boundary in the execution proceeding.

I have considered the arguments of the Counsel for the parties.

So far as scope of counter-claim is concerned, Order 8, Rule 6A , CPC provides that counter claim can be filed against the plaintiff and cause of action in the counter-claim must have been arisen against the plaintiff on or before filing Written Statement. By the proposed amendment, the petitioner has sought to raise a plea that sufficient portion of the disputed property, Revenue No. 267, area 224 Kadi, is banjar land and since declaration of title over the land is required, Town Area, Ghosi as well as State of U.P. were necessary parties to be impleaded to remove the defect of nonjoinder of necessary and proper parties in the suit. Such a plea amounts to jus terii. It is not against the plaintiff but the defendant w ants to set up title over the disputed land of third person. It is well settled that plea of jus tertii cannot be raised by the defendant. The proposed amendment was not at all required within the meaning of Order 7, Rule 3 , CPC. The impugned orders do not suffer from any illegality. The petition is dismissed.

However, the Court below shall proceed to decide the suit expeditiously, without granting unnecessary adjournments to either of the parties.