VIKAS PANDEY AND OTHERS Vs. SURESHCHANDRA SHRIVASTAVA

JUDGEMENT

(1.) This appeal filed under Order 43, Rule 1(u) of the Code of Civil Procedure, 1908 (for the short, ''the CPC) is directed against the judgment dated 16.1.2012 to the extent the court below disallowed the application of present appellant preferred at appellate stage under Order 6, Rule 17 of the CPC seeking amendment in the written statement filed before the trial court.

(2.) Shri Ashok Tiwari, learned counsel for the appellant assailed the impugned judgment by submitting that the respondent/plaintiff filed a suit for mandatory and permanent injunction. The written statement was filed by the present appellant. The suit was ultimately decreed by judgment and decree dated 17.11.2008. Aggrieved, the appellant filed Civil Appeal No.63-A/2009 before the lower appellate court. During the pendency of the said appeal, the present appellant filed two applications. The first application was regarding scientific investigation of the suit land/property whereas the second application was preferred under Order 6, Rule 17 of the CPC. Shri Tiwari fairly submits that since the first application was allowed and the court below has directed for appointment of an expert/commissioner, he is not aggrieved by the said part of the judgment. The appellant is aggrieved whereby his application for amendment was disallowed.

(3.) Learned counsel for the appellant placed reliance on the averments of the amendment application dated 29.9.2011 and contended that when the lower appellant court has remitted the matter back to the trial court, in fitness of things, the amendment application should have been allowed so as to permit the appellant to contest the matter on pure legal issues raised in the amendment application.