BUDDHSEN VISHWAKARMA Vs. DHARM SINGH AND ANOTHER

JUDGEMENT

(1.) By means of instant petition, the petitioner has challenged the order dated 12.12.2017 passed by Additional District Judge, Court No. 4, Shahjahanpur rejecting amendment application Paper No. 20-C refusing amendment of the plaint at the appellate stage.

(2.) The appellate court, while rejecting amendment application, has held that the amendment sought is contrary to the pleadings taken by the petitioner in para 5 of the replication. In case the amendment is allowed, it will change the nature of the case set up by the petitioner before the trial court.

(3.) The petitioner had instituted Original Suit No. 378 of 2007 alleging that his house is in existence over the suit property and the defendants are trying to interfere in his possession. Consequently, he sought permanent injunction restraining the defendants from interfering in his possession, use and occupation of the house. The suit was contested by the defendants by taking a specific plea that the house is situated over Gata No. 307 admeasuring 0.575 hectare which belongs to them. The petitioner filed replication. In para 5 thereof, he pleaded that the house is not situated over Gata No. 307. The suit was dismissed by the trial court. The petitioner filed an appeal. During the pendency of the appeal, he filed an application seeking amendment of the plaint. By the amendment sought, the petitioner wanted to introduce a plea to the effect that the land over which the house is built, was purchased by him from one Dharm Singh alias Dhanna Singh s/o Jaggi Singh for a sale consideration of Rs.92,000/-. It was alleged that in respect of the sale transaction, a receipt was executed before Notary Public on 6.2.2001 in presence of the witnesses. The petitioner further claim that the aforesaid plea could not be taken in the original plaint, though the facts were disclosed to his previous counsel. When he engaged a new counsel in appeal and he was preparing the matter for final hearing, it came to his knowledge that these important facts had not been mentioned and accordingly, amendment was sought.