Shyam Kali Yadav vs Anindya Shrivastava

U.C. Maheshwari, J.—This petition is listed today for admission and consideration of IA No. 16452/13, stay application but in the available circumstances, so also looking to the nature of the short question involved in this petition, instead to hear it on admission with the consent of the parties, the same is heard for final disposal. The petitioners- plaintiffs have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 12.11.2013, passed by the IIIrd Civil Judge, Class-I, Rewa in COS No. 147-A/13, whereby application of respondent No. 1 - defendant filed under Order 6, Rule 17 of CPC for consequential amendment in the WS, in respect of the amendment carried out by the plaintiffs in the plaint has been allowed.

The petitioners'' counsel after taking me through the averments of the petition as well as papers placed on record including the amendment application, (Ann. P-4) and the impugned order argued that mere perusal of defendant''s application, (Ann. P-4), it could not be said that the proposed amendment is consequential, in response of the amendment carried out by the petitioners by application, (Ann. P-3). He also said that the petitioners have inserted the amendment in the suit to raise plea in alternate that they have also perfected title over the disputed property by adverse possession while on extending the opportunity of consequential amendment to the respondent No. 1 by way of aforesaid application, besides the consequential amendment, he also proposed some additional amendment in the WS and after allowing the same the entire nature of the defence taken by respondent No. 1 earlier in the WS has been changed. He also said that the facts which were exclusively in the knowledge of the respondent- defendant No. 2 and not in the knowledge of respondent No. 1. The same are also proposed by way of amendment without any foundation and in such premises, the application till this extent should have been dismissed by the trial court. Such application has been allowed by the trial court contrary to law and the procedure. In such premises, the impugned application of the respondent No. 1 could not be deemed to be the amendment application for consequential amendment. As such the same has been filed for inserting new facts after framing issues. In such premises, also the impugned order is not sustainable and prayed for setting aside the order by dismissing the aforesaid application by allowing this petition.

In response of aforesaid arguments by justifying the impugned order, the counsel for respondent No. 1 said that the impugned order being based on proper appreciation of the available factual matrix of the matter and the existing legal position does not require any interference at this stage. In any case, if it is found that in response of the pleadings of the petitioners inserted by amendment stating in alternate that he has perfected the title over the property by adverse possession, if additional pleading has been carried out by the respondent No. 1 by way of amendment to show the possession of the petitioners as permissive possession, then the petitioners may be extended an opportunity to file a consequential amendment in that regard but in any case by setting aside the impugned order her application could not be dismissed at this stage and prayed to dismiss the petition.

Having heard the counsel, keeping in view the arguments, I have carefully gone though the papers placed on record.

It is apparent that initially the impugned suit was filed with respect of the disputed land by the petitioners for declaration and perpetual injunction, so also for declaration to declare the alleged sale deed ab initio void executed by the respondent No. 2 in favour of respondent No. 1, vide dated 22.8.2009. But in pendency of the suit, the petitioners themselves by way of the application, Annexure P-3 have proposed the amendment to take the plea in alternate that they have perfected the title over the disputed property by way of adverse possession and such application was allowed on some earlier occasion and as a consequence of the same, the impugned application was filed to propose the consequential amendment in the WS. According to such proposed amendment, the plea of the petitioners regarding adverse possession has not only been denied but special pleadings with some additional facts to show the possession of the petitioners over the disputed property as permissive possession has also proposed. So in such premises, I have found that the impugned amendment was proposed on behalf of the respondent No. 1 defendant as consequential amendment of the plaint carried out by the petitioners. In such premises, the impugned order does not require any interference at this stage, thus, this petition being devoid of any merits deserves to be and is hereby dismissed.

However, in the available circumstances, taking into consideration, it is apparent that while denying the averment of the plaint regarding adverse possession the respondent No. 1 has also pleaded some special pleading with new facts and to rebut the same, the petitioners could not get the opportunity to explain such circumstances in their pleadings. So in such premises, I deem fit to extend an opportunity to the petitioners to file the consequential amendment in the suit in response of amended pleadings of the respondent No. 1. The same is extended. Pursuant to it, the trial court is directed that on filing any application on behalf of the petitioners to propose the consequential amendment in the suit within 30 days, then the same be considered on its own merits under the aforesaid liberty. If such an application is not filed within the aforesaid period, then the right of the petitioners to take the same shall come to an end and thereafter the trial court shall be at liberty to proceed further on the basis of the existing pleading. C.c. as per rules.