Nirmal Kumar Shrivastava v. Ram Govind Choudhary And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15441 of 2010 ======================================================
1. Nirmal Kumar Shrivastava S/O Late Sidh Nath Prasad R/O MohallaTurha Toli, Buxar, P.S.- Buxar, Distt.- Buxar .... .... Petitioner.
Versus
1. Ram Govind Choudhary S/O Late Dukh Haran Choudhary R/O Vill.- Cheura, P.S.- Narali, Distt.- Balia (U.P.), Presently R/O Mohalla- Rurha Toli, Buxar, P.S.- Buxr, Distt.- Buxar
2. Shesh Nath Choudhary S/O Late Dukh Haran Choudhary R/O Vill.- Cheura, P.S.- Narali, Distt.- Balia (U.P.), Presently R/O Mohalla- Rurha Toli, Buxar, P.S.- Buxr, Distt.- Buxar
3. Shree Mahanth Venktachary Chella - Chaturbhujachari Vill.- Ahirauli, P.S.- Buxar (Industrial), Distt.- Buxar .... .... Respondents. ====================================================== Appearance :
For the Petitioner/s : Mr. Hari Narayan Singh For the Respondent/s : Mr.
====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT 31-08-2015 Heard Mr. Raghib Ahsan, the learned senior counsel for the petitioner, Ms. Mallika Mazumdar, the learned counsel for the respondent nos.1 and 2 and Mr. Sanjay Kumar Ghoswaray, the learned counsel for the respondent no.3. Assailing the legal acceptability of the impugned order rejecting the prayer of the plaintiff for amendment in the plaint, the present application under Article 227 of the Constitution of India has been filed. The plaintiff has filed the suit for declaration that the sale deed dated 20.09.1990 could not affect the title of the plaintiff. The respondent-defendants appeared and filed their written statement contesting the relief prayed by the plaintiff. During the pendency of the suit the plaintiff filed a petition on
Patna High Court CWJC No.15441 of 2010 (5) dt.31-08-2015 10.11.2008 praying for amendment in the plaint seeking to incorporate the relief regarding the confirmation of possession and in the alternative for recovery of possession, if found dispossessed during the pendency of the suit. The plaintiff has also sought to add paragraph-11A containing the statement that the defendants have started collecting materials for construction. The learned court below by the impugned order has rejected the prayer of the plaintiff-petitioner firstly, on the ground that the amendment has been sought for after long delay and secondly the suit is of the year 1991 and allowing the amendment involves granting opportunity to the defendants to file written statement which would further delay the disposal of the suit.
After considering the submissions and the materials on record, it is manifest that the plaintiff-petitioner initially has filed the suit as a declaratory suit seeking the declaration that the sale deed dated 20.09.1990 would not affect the title of the plaintiff. Subsequently however, the prayer for amendment has been made and in substance the prayer is for adding the relief with regard to confirmation of possession or recovery of possession in case of dispossession.
Patna High Court CWJC No.15441 of 2010 (5) dt.31-08-2015 defendants have claimed themselves to be in possession over the suit land. In this view of the matter, the amendment if allowed by adding the relief with regard to possession would not prejudice the case of the defendants. Moreover the evidence of the plaintiff according to the learned senior counsel for the petitioner is still to be closed.
After considering the aforesaid facts and circumstances, this court holds that this writ application has got merit and the prayer of the plaintiff-petitioner for amendment as sought should be allowed. Accordingly, the writ application is allowed and the impugned order is quashed but in order to balance the equity as the amendment has been sought belatedly, this order shall be subject to payment of cost of Rs.2500/- to the respondent 1st set and Rs.2500/- to the respondent 2nd set , which must be paid within one month from the date of receipt/production of a copy of this order in the court below. The learned senior counsel for the petitioner has fairly submitted that the plaintiff would complete his evidence within one month and would not unnecessarily delay the disposal of the suit. Accordingly, the writ application is allowed with aforesaid observations and directions.
(V. Nath, J) Nitesh/- U