KISHORILAL Vs. BALKISHAN

JUDGEMENT

(1.) CHALLENGE in this petition under Article 227 of the Constitution is made to the order dated 11-2-2002 passed by IIIrd ADJ, Gwalior in Civil Suit No. 296A of 1994 allowing application filed by the respondent/defendants for amendment under Order 6, Rule 17 of Civil Procedure Code and taking on record certain documents filed along with the application under Order 13, Rule 2 of Civil Procedure Code.

(2.) PETITIONER is plaintiff and has filed the suit in question inter alia contending that father of the respondents had executed an agreement for sale on 18-5-1983. As per the term and condition of the agreement, an amount of Rs. 2950/- (Rs. two thousand, nine hundred and fifty only) has been adjusted as consideration of sale, and possession of the disputed house has been handed over to the petitioner and now, as per conditions of the agreement, sale deed for the house was to be executed before 31-1-1984. Grievance of the petitioner in the suit is that father of the respondents has not executed sale deed in spite of the agreement which has been modified vide another agreement dated 2-9-1983, seeking specific performance of the aforesaid agreement, suit in question has been filed.

(3.) THE counter-claim is filed in the year 1995, and after recording of evidence, it is the case of the petitioner that on 29-1-2002, two applications were filed by the respondents one under Order 6, Rule 17 of Civil Procedure Code Annexure P/6 for amendment of written statement and another under Order 13, Rule 2 of Civil Procedure Code Annexure P/7 for taking on record a notice and certain postal receipts for issuance of the aforesaid notice dated 12-5- 1983. It is grievance of the petitioner that both these applications have been allowed by the impugned order and assailing the order passed allowing these applications, present petition is filed. Shri Vinod Bhardwaj argued that in the written statement filed and the counter-claim only averment is made for payment of rent due and now, by amending petition, certain belated claim on the basis of a notice issued 16 years prior to filing of the suit i.e. on 12-5-1983, certain benefits are being claimed. Inter alia contending that the proposed amendment amounts to withdrawal of the admission made so also it amounts to making claim for belated dues, petitioner seeks rejection of the application for amendment. Inviting my attention to certain observations made by a Bench of this Court in para 22 of its judgment passed in the case of Hansa Devi v. Bachchalal, reported 2002 Volume 1 MPLJ 122, Shri Bhardwaj argued that averment made in a written statement or a counter-claim cannot be permitted to be withdrawn which has the effect of withdrawal of an admission made, causing irretrievable prejudice to one of the parties. Accordingly, interference in the matter of allowing applications is sought in this petition under Article 227 of the Constitution.