AMIT SAINI Vs. SUSHIL KUMAR AND ORS.

JUDGEMENT

(1.) DEFENDANT /petitioner, herein, has preferred present petition under Article 226/227 of the Constitution of India assailing the judgment/order dated 7.9.2013 passed in OS No. 28 of 2006, Sushil Kumar & another v. Amit Saini, passed by learned Additional Civil Judge (S.D.), Roorkee, whereby amendment application moved by the defendant/petitioner, herein, was dismissed as well as judgment and order dated 10.11.2014 passed by 2nd Additional District Judge, Roorkee in Civil Revision No. 126 of 2013, whereby revision filed by the defendant/petitioner, herein, assailing the order passed by learned Trial Court rejecting the amendment application was dismissed. By way of proposed amendment, defendant/petitioner, herein, wanted to incorporate paragraph No. 29 -A in the written statement to the effect that admittedly defendant No. 2 is a 'Harijan' belonging to Scheduled Caste, therefore, any transfer made by defendant No. 2 (belonging to Scheduled Caste) without prior approval of the Collector is a nullity, therefore, suit filed by the plaintiff is barred by Section 166 of UPZA & LR Act. Amendment so sought was declined by both the courts below.

(2.) BY way of proposed amendment, defendant/petitioner, herein, wanted to challenge the maintainability of the suit in view of the provisions of Section 166 of the UPZA & LR Act. While passing the final judgment, learned Trial Court is duty bound to look into as to whether suit is maintainable or is liable to be dismissed in view of the statutory provision. Therefore, it goes without saying that defendant/petitioner, herein, shall be at liberty to argue the legal point, sought to be incorporated by way of amendment, at the time of final argument and learned Trial Court shall record its finding on the question of maintainability of the suit while recording observation under the issue - as to what relief the plaintiff is entitled for?