MEGHRAJ SINGH Vs. MARDAN SINGH

JUDGEMENT

(1.) BY means of this petition, moved under Article 227 of Constitution of India, the petitioners have sought quashing of order dated 10.10.2002, passed in Civil Appeal No. 57/1998, by Sri. K.D. Bhatt, Learned Addl. District Judge/Fast Track Court, Hardwar whereby he has rejected the application for amendment in written statement, at the appellate stage.

(2.) BRIEF facts of the case, as narrated in the petition, are that respondent No.1 & 2 filed a suit No. 70/1991 in the court of Civil Judge (S.D.), Roorkee for seeking permanent prohibitory injunction against the defendants. According to the appellants the case property in suit situate in Khasra No. 101/114/115/116/117/118 on the south of Khasra No. 120/1 and 120/2 belonging to the defendants. Defendant No 4, father of petitioner filed his written statement before the trial court specifically denying therein that property situate in Khasra No. 101/114/115/116/117/118. Learned Trial Court after recording evidence and hearing the parties decreed the suit of the plaintiffs. Aggrieved by which, Sri Mulki Singh (defendant), father of Petitioners, preferred Civil Appeal No. 57/1998 before the District Judge, Hardwar which was later transferred to the Court of respondent No.8 Addl. District Judge/2nd F.T.C., Hardwar. An amendment application was moved by Sri Mulki Singh, father of petitioner under order VI Rule 17 read with Section 151 of Code Civil Procedure, 1908, for in addition of the plea in paragraph No.4 of the written statement to the effect that disputed property situate in Khasra No. 119, 120/1 & 120/2. Meanwhile, the original appellants, died and petitioners were substituted alongwith Smt. Santosh and Smt. Shrawan as legal representatives of the appellants. Respondent No.8 after hearing the parties rejected the amendments application vide his order dated 10.10.2002. The said order has been challenged through this petition on the ground that the proposed amendments neither changes the nature of the suit nor is it bring contradictory plea, rather pleadings have been sought to be clarified by the defendant appellant.

(3.) A Counter affidavit has been filed on behalf of plaintiffs -respondent No. 1 & 2, in which it has been stated that plaintiffs before the trial court moved an application under order VI Rule 5 read with Section 151 or the Code Civil Procedure. 1908, for better particulars with the prayer that the defendant No.1 & 4 be directed to give Khasra No. of the property in suit. Sri Mulki Singh (defendant No.4), father of petitioners submitted his objections against the said application and when directed by the Court, submitted his reply stating that defendant No. 3 & 4 do not know in which Khasra No. of the property in dispute is situate. It is further stated that now suit has already been decreed, and learned appellate Court has rightly rejected the amendment application as malafide. It is also stated by the answering respondent that the application for amendment was moved only to frustrate to decree pased in favour of the plaintiffs.