LAXMI NARAIN Vs. SHYAM LAL & ORS.

JUDGEMENT

(1.) By means of the present writ petition, the petitioner has challenged the order dated 9.9.1999 passed by VIth Additional District Judge, Lakhimpur Kheri by which amendment application moved under Order VI, Rule 17 of Civil Procedure Code, 1908 of the respondent Nos. 1 and 2 for amendment in written statement was allowed at the appellate stage. In brief the facts of the instant case are that the petitioner filed a Civil Suit (Civil Suit No. 262 of 1987) in the Court of Civil Judge (Junior Division) Lakhimpur Kheri for permanent injunction on 4.9.1987. In the said suit the plea which were taken by the petitioner in respect of two sets of property mentioned in paras 1 and 2 of the plaint. One, in respect to a house belonging to Smt. Chandra kali from whom the petitioner claims his right on the basis of registered Will dated 11.6.1974 and another, in respect to the tenancy right in rental shop in which petitioner claimed that he is running the utensil business a long with Smt. Chandrakali and his brother Ashok Kumar. Respondent Nos. 1 and 2 Shyam Lal and Smt. Phoolmati, who are father and mother of the petitioner, had filed a written statement in the suit, on the ground that a Will has been executed by Smt. Chandrakali (sister of respondent No. 1) in favour of Smt. Phoolmati as such they are the owner of the property, if any left by Late Chandrakali, plea was also taken by them that the house left by Smt. Chandrakali was benami in her name and it actually belongs to them. On the basis of pleadings and material evidence on record, the Trial Court by the judgment and decree dated 21.5.1996 allowed the suit.

(2.) Aggrieved by the same, the respondent Nos. 1 and 2 filed an appeal (Appeal No. 96 of 1996) on 25.5.1996 before the VIth Additional District Judge, Lakhimpur Kheri, thereafter on 17.5.1999, the respondent Nos. 1 and 2 moved an application under Order VI, Rule 17 of C.P.C. for amendment of the written statement, against which petitioner had filed his objection on 30.7.1999. The said amendment application was allowed by opposite party No. 4 by means of order dated 9.9.1999, hence the present writ petition.

(3.) Sri S.S. Azmal Advocate brief holder of Sri Safiq Mirza, learned Counsel for the petitioner while assailing the order dated 9.9.1999 passed by respondent No. 4 submits that by means of amendment the respondent Nos. 1 and 2 wants to introduce a new case at the belated stage that he was brother of Smt. Chandrakali being her nearest heir, as such the tenancy of the disputed shop shall devolve upon him. The said plea was totally different to the case as set up by the respondent earlier in their written statement that respondent No. 2 Smt. Phoolmati was the tenant of the disputed shop. The other amendment sought by means of amendment application that respondent No. 3 Ashok Kumar was not traceable since last seven years so he shall be presumed to be dead as such the right and title of respondent No. 3 in the property in dispute shall devolve upon respondent No. 2. He further submits that the amendment cannot be allowed as in this regard the Trial Court had already rejected an application so the amendment application deserves to be dismissed on said ground as well as on the ground of delay and laches and also on the ground that the application does not discloses that as to why the amendment in spite of due diligence could not have been raised earlier.