RAGHU NANDAN PRASAD SHARMA Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) Heard Sri Sudeep Harkauli, learned counsel for the petitioner and Sri Madhav Jain, who has appeared by caveat on behalf of the sole respondent. Since both the parties are present, with the consent of learned counsel for the parties, this writ petition is being decided finally today itself.

(2.) By means of this writ petition, the petitioner assailed the order dated 12.07.2013 passed by the Additional District Judge, Court No. 16, Agra in Civil Appeal No. 12 of 2012 (Raghu Nandan Prasad Sharma Vs. Rameshwar Prasad and others). By the said order, the amendment application paper n o. 26 Ga filed by the defendant appellant has been rejected.

(3.) Learned counsel for the petitioner has submitted that the impugned order is illegal for the reason that the amendment in the written statement at the appellate stage was necessary since in the suit for partition there was no determination by the trial court regarding the rights of the defendant appellant claimed on the basis of his tenancy over the premises in question. It is also stated that prior to institution of the suit for partition the defendant appellant claimed to have purchased the property from the persons who the appellant believed to be owner of the entire property. However when the plaintiff respondent had disputed the extent of share of the vendor of the defendant appellant such amendment was necessitated. He states that in view of the aforesaid circumstances, the amendment sought for by the defendant appellant at the appellate stage ought to have been allowed more particularly when the trial court had decreed the plaintiffs partition suit for possession and declaration of half share in the property in question.