GULAM MOHAMMAD Vs. CHUTTAN

JUDGEMENT

(1.) The petitioner, Gulam Mohammad, through power attorney holder Mohd. Irfan who is defendant No. 15 in suit No. 244 of 1997, has filed the present writ petition against an order allowing the amendment: of the plaint in a suit for partition filed by the respondent No. 1.

(2.) The facts giving rise to the present writ petition for the purposes of its disposal briefly stated are as follows:The respondent No. 1 filed suit No. 244 of 1997 impleading 14 persons as defendants for partition of two properties described in the plaint. He claimed 4/9 share in the property No. 1 and 2/9 share in property No. 2. The present petitioner was not initially impleaded as one of the defendants in the suit. It appears that the present petitioner was subsequently impleaded as defendant No. 15 in the suit and he filed a written statement and also claimed partition of his 2/3 share in the property No. 1 and pleaded that he has become the owner of the property No. 2 by adverse possession. The parties led evidence in support of their respective cases and the dates in the suit were being fixed for final hearing. In the year 2003 one Smt. Sayra who is sister of the present petitioner filed an application for her impleadment as one of the defendants in the suit. In the impleadment application she stated that she is cosharer in the disputed properties and is real sister of defendant No. 15 namely the present petitioner and there has been a compromise in between her and the present petitioner. The impleadment application filed under Order 1 Rule 10 was initially rejected by the trial court by the order dated 12th of September 2003 but in revision No. 30 of 2003, the Additional District Judge, Court No. 6 set aside the order of the trial court and directed to decide the impleadment application afresh in the light of the observations made in the order, vide order dated 31st of January, 2004. Thereafter an application No. 184 C was filed by Smt. Sayra, the defendant No. 16 and sister of the present petitioner for her impleadment before the trial court in view of the judgment delivered in Civil Revision No. 30 of 2003 The said application was allowed by the trial court by the order dated 25th August, 2004 and the plaintiff was directed to file the necessary amendment application for amending the plaint. In compliance of the aforesaid order the plaintiff respondent No. 3 filed an application dated 26.8.2004 for amending the plaint by impleading Smt. Sayra as defendant No. 16 in the array of the parties. This was numbered as application No. 198 -A. The said application was objected by the defendants on the pleas that the plaintiff has not sought consequential amendments in the plaint and has simply sought the addition of Smt. Sayra as defendant No. 16 in the array of the parties. The plaintiff respondent No. 1, therefore, filed another application a copy of which has been filed as Annexure No. 11 to the writ petition. By means of this application the plaintiff sought the addition of paragraph 2 A in the plaint. The said paragraph reads as follows:

(3.) This application has been allowed by the trial court by the order dated 22nd of September 2004. The present petitioner challenged the order allowing the amendment application unsuccessfully in revision No. 115 of 2004. The revisional court dismissed the revision on two points. It was of the opinion that the amendment has been sought in pursuance of the order passed by the revisional court and secondly the revision was not maintainable in view of the judgment of the Supreme Court given in the case of Prem Bukshy and Ors. v. Dharm Dev and Ors. AIR 2002 S.C. 559.