ABDUL MATEEM Vs. MEHANDI HASAN

JUDGEMENT

(1.) By means of present writ petition, petitioner has challenged the order dated 18.12.2003, passed by District Judge. Varanasi in Civil Revision No. Nil of 2003, Mehandi Hasan v. Abdul Yatin, filed against the order of the IIIrd Additional Civil Judge (Junior Division), Varanasi dated 1.12.2003, by which amendment application of the petitioner/defendant has been rejected. District Judge, Varanasi upheld the order of the Illrd Additional Civil Judge (Junior Division), Varanasi.

(2.) Respondent No. 1 has filed a suit for permanent injunction against the petitioner and others for restraining them from opening any door or window on the wall and the galiyaras in dispute not be used as rasta and they may also be restrained from damaging sewer situated in the land in dispute. Respondents No. 3 and 4 have alleged themselves to be the owner and in possession of the disputed galiyara. The suit filed by the respondents No. 3 and 4, was registered as Original Suit No. 46 of 1988 before Munsif City. Varanasi. Petitioner filed written statement on 3.10.1991. Thereafter amendment application was moved on 4.10 2001. The aforesaid amendment application has been rejected on the ground that the facts mentioned in the amendment application were available at the time of filing of written statement and the amendment application was moved after a long time. Civil Judge. (Junior Division), Varanasi was of the view that the permission to allow the amendment under Order VI, Rule 17, C.P.C. may not be justified. District Judge has rejected the revision on the ground that perusal of the application shows that by way of amendment, petitioner wanted to amend, that the property in dispute does not lie in plot No. 26/255. The disputed portion shown by letters A, B, C and D lies out of plot No. 26/255. This is a fact for which it cannot be said that the revisionist were not aware about it before the commencement of the trial. Perusal of the record shows that the issues were framed on 30.7.1997 and case was running for evidence of the parties and in the meantime, amendment application was moved on 4.10.2001. Thus, it is clear that the amendment application was moved after the commencement of the trial and according to the District Judge after amendment of the provisions of Order VI, Rule 17, C.P.C. the amendment cannot be allowed after the commencement of the trial unless Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. While in the present case it is apparent that if the revisionist have applied due diligence, they could have moved the above amendment application before the commencement of the trial. Accordingly, revision was dismissed.

(3.) Heard learned Counsel for the parties.