RASHIDA Vs. V ADDITIONAL DISTRICT JUDGE, HARDOI

JUDGEMENT

(1.) HEARD Mr U.S. Sahai, learned counsel for the petitioner as well as Mr Madan Gopal Mishra for the respondent.

(2.) THE petitioners have assailed the order dated 28.4.2001, passed by the V th Additional District Judge, Hardoi whereby the petitioners' application for amendment of the plaint at the stage of appeal has been rejected on the ground that through the proposed amendment the petitioners had set up a new case based on the stand different to the stand taken in the plaint.

(3.) THE petitioners filed a suit for permanent injunction in which they stated that the land in dispute is their Sahan land as they have been coming in possession over there since their ancestors. The respondent no.2/ defendant contested the suit by filing written statement in which he denied the claim of the petitioners/ plaintiffs. The trial court dismissed the plaintiffs' suit. Aggrieved plaintiffs filed an appeal before the Court of District Judge, Hardoi, which is registered as Civil Appeal No.116 of 1997. In the said appeal he moved an application for amendment of the plaint, stating therein that Sadruddin, husband of petitioner no. 1 and father of petitioners no. 2 to 5 got executed a lease of the land in dispute from the Gaon Sabha on 28.4.1967 but due to his old age his memory had become weak, therefore, he could not disclose this fact. However, the Court below examined this fact and found that at the time of institution of the suit Sadruddin was aged about 75 years and he declared himself as owner of the land in dispute since the time of his ancestors. Now by taking contrary stand he has stated that he got it by way of lease deed executed in 1967 by the Gaon Sabha. Thus, the Court below found the statement of Sadruddin contradictory. Hence rejected the petitioners' application on the ground that the petitioners wanted to change the nature of the suit.