BASHIR AHMAD Vs. IIIRD ADDITIONAL DISTRICT JUDGE BASTI

JUDGEMENT

(1.) THIS writ petition is directed against an order dated 24 -8 -1990 passed by III Additional District Judge, Basti. In way back January, 1981, the Petitioner filed a suit for permanent injunction, demolition and possession against the Defendant -Respondents, arrayed as Respondents 2 to 5 in these proceedings. The suit was initially dismissed on 27 -3 -1982. However on appeal, the matter was remanded for fresh trial which was again dismissed on 26 -3 -1987. When the matter came up in appeal for the second time, the Petitioner moved an application to amend his plaint. The amendment was sought, as stated in the impugned order after the arguments in the appeal were almost over. The application for amendment was rejected on the ground amongst other that the same was moved with mala fide intentions. It is against this order that the present writ petition has been filed.

(2.) I have heard learned Counsel for the parties. For the Petitioner it was argued that the amendment application could not have been rejected without recording any finding that the amendment sought for will change the nature of the suit and cause of action. Further, on the facts and circumstances of the case, the amendment deserved to be allowed, inasmuch as the Defendant -Respondents could be compensated by costs.

(3.) NOW in the present case the lower appellate court rejected the application seeking amendment of the plaint for variety of reasons and substantially on the ground that the attempt to seek amendment in the plaint was not in good faith and was mala fide, with ulterior motive to prolong the litigation which was already almost a decade old. The suit was filed on 2nd January 1981 which was initially dismissed on 27 -3 -1982 as noticed earlier. The matter was remanded for fresh trial by the appellate court with the direction to afford opportunity to the parties to produce such further evidence as they might like to produce. On 26 -3 -1987, for the second time the trial court dismissed the suit. It was against this judgment when the matter was being argued in appeal that the amendment in the plaint was sought, i.e. after 3 1/2 years the appeal remained pending and after nine years of filing of the suit, for the amendment application came to be dismissed on 24 -8 -1990 by the impugned order. The lower appellate court remarked that one of the proposed amendments relates to fact prior to Zamindari abolition (i.e before the year 1952) and another of the proposed amendments relates to the fact which existed at the initial stage of the suit. No reason even worth the name, was mentioned in the amendment application as to why these facts could not be pleaded or why the amendment was not sought earlier particularly when the Petitioner had two innings before the trial court and one before the appellate court when the case was remanded and all the necessary facts throughout had been in the knowledge of the plaintiff -Petitioner In the absence of any explanation forthcoming for such a gross negligence and inordinate delay, the application for amendment was rejected for want of bona fides, the propose of seeking amendment being to prolong the litigation somehow.