RAJENDRA SINGH Vs. YOGESH DWIVEDI

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution is directed against the order dated 18.1.2011, whereby the Court below has allowed an application for amendment preferred under Order 6 Rule 17 CPC.

(2.) THE respondent No.1 /plaintiff filed a suit for declaration and permanent injunction regarding an agriculture land praying inter alia that it be declared that the agriculture land in question is the ancestral property in which only one plaintiff has right, title and interest and the sale deed executed by father of plaintiff is not binding upon the plaintiff being null and void. The trial Court dismissed the suit of plaintiff on 15.10.2005. The plaintiff filed First Appeal No. 76A/2005 against the dismissal of the suit. The first appellate Court remanded the matter with certain directions. On remand, the plaintiff filed the amendment application on 30.11.2009. The same was opposed by the other side by filing reply. In reply, Annexure P -6, it is stated that the plaintiff was well aware about the factual matrix of the matter which became part of the amendment application. The plaintiff has not chosen to file the amendment application with quite promptitude and with due diligence and, therefore, at this stage on remand the amendment is impermissible. A special objection was also taken that on remand the amendment cannot be allowed.

(3.) SHRI J.P.Mishra, learned counsel for the plaintiff submits that amendment will not change the nature of the case and there was nothing in the order of first appellate Court which precludes the plaintiff to file an application for amendment. He submits that most of the documents relied upon in application for amendment are already on record and, therefore, it will not cause any prejudice to the other side. In support of his contention, he relied on 2008 RN 285 =2008 (2) MPLJ 417 (Chunnilal (since dead) through Lrs Puniya Bai v. State of MP and others); and 2008 RN 362 = 2008 (III) MPJR 317 (Bhivji through Lrs Smt. Kamla Bai v. Rajesh and others). He also relied on (2012) 2 SCC 300 (J. Samuel and others v. Gattu Mahesh and others).