HARSWAROOP SHARMA Vs. ANIL KUMAR PANDEY AND ANOTHER

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for the respondents.

(2.) By means of instant petition, the petitioner has challenged the order dated 27.10.2017 passed by the District Judge, Etah in Civil Revision No. 36 of 2016. The revisional court has allowed the revision filed by the first respondent challenging the order of the trial court dated 27.5.2016 allowing amendment of the plaint. The effect of the order of the revisional court is that the amendment sought by the petitioner now stands rejected.

(3.) The petitioner instituted Original Suit No. 85 of 2013 against the first respondent, Anil Kumar Pandey for permanent prohibitory injunction restraining him from interfering in the use of the rasta shown with letters G H I J in the plaint map. According to the plaint assertions, it is the only rasta which connects his house with the public rasta. It was also reserved for rasta in a mutual partition between him and the first respondent. The said fact was also admitted by the first respondent in the written statement filed in Original Suit No. 696 of 2004. The first respondent filed written statement and contested the suit by contending that the suit property does not belong to the petitioner, but was purchased by him and his brother Anil Kumar, the second respondent, by sale deed dated 4.12.1999. He further pleaded that the instant suit is barred by res judicata, on account of dismissal of earlier suit No. 696 of 2004. Even before issues could be framed, the petitioner having regard to the case set up by the first respondent in the written statement applied for amendment of the plaint. By the amendment sought, the petitioner prayed for impleadment of the second respondent as party defendant to the suit. He also sought to elaborate the facts relating to institution of earlier suit, being Original Suit No. 696 of 2004, in regard whereof, the first respondent has alleged that there has been concealment in the plaint. It was claimed, by the amendment sought, that in fact the petitioner and the first respondent jointly purchased ¼ share in the property by sale deed dated 12.9.2000. They are in possession of their respective â ..›th share. The disputed land was left out for common use of the parties, as rasta. The earlier suit was dismissed solely on the ground that it was a collusive suit, not on merits, thus, would not operate as res judicata. The trial court, after considering the objections filed by respondent No. 1 allowed the amendment being of the opinion that the amendment sought is necessary for determining the real controversy in issue between the parties; to avoid multiplicity of proceedings; and would cause no prejudice to the first respondent. The trial court also held that the plea that the suit is barred by res judicata would be considered during trial.