JAGDISH SHARAN Vs. RAGHUVEER SHARAN

JUDGEMENT

(1.) IMPUGNING the order dated 04032013 (Annexure P1) passed in Civil Suit No.103A/2010, this petition is filed under Article 227 of the Constitution. The Court below allowed the amendment application Annexure P17, dated 04092012 by the impugned order.

(2.) THIS matter has a chequred history. Petitionersplaintiffs filed a suit for partition, declaration and permanent injunction (Annexure P2). Respondent No.1 defendant filed his written statement (Annexure P3). Petitioners filed an application for amendment under Order 6 Rule 17 CPC due to death of plaintiff No.1 (Annexure P4). By order dated 17102011 (Anenxure P5), the trial Court allowed the said amendment application and granted liberty to the other side to file consequential amendment, if required. Respondent No.1defendant filed an application for amendment on 01112011. By this application, he wanted to add certain paragraph in the written statement. It is contended by the petitioners that this amendment was not simply a consequential amendment. In addition to the grounds taken as consequential amendment, certain new lands were sought to be added which were in the name of certain other persons. The petitioners by reply dated 01122011 (Annexure P7), opposed the consequential amendment. The Court below by order dated 01122011 rejected the consequential amendment of respondent No.1. This order is Annexure P8. On 16122011, respondent No.1 defendant again preferred an application under Order 6 Rule 17 CPC, by including counterclaim in it and submitted before the Court. The petitioners plaintiffs, in turn, filed an application under Order 8 Rule 6(a) CPC, by praying that the properties included in the application of defendant preferred under Order 6 Rule 17 CPC are not of the plaintiffs and are of some other persons. This application of petitioners is filed as Annexure P11. The defendant, in turn, filed his reply to the said application on 21122011. The trial Court by order dated 03012012 allowed the application of the petitioners aforesaid submitted under Order 8 Rule 6 (a) CPC. This order is Annexure P13.

(3.) THE respondent No.1 defendant filed Writ Petition No.928/2012 challenging the order dated 01122011 (Annexure P8). This Court opined that the amendment, in whole, of respondent No.1 could not have been allowed treating it to be a consequential amendment. The amendment application dated 01112011 (Annexure P6) to the extent it was related to consequential amendment, was allowed. For rest of the portion, respondent No.1 was given liberty to file a fresh application before the Court below.