Shanti Devi v. Mantun Kumar Yadav & Ors

Nos. 7 to 13 are daughters of late Banarsi Poddar All residents of village/Muhalla Malgodam Road, Ward No.13, Khagaria, Municipality, P.O. ,P.S. and District- Khagaria …Defendants no. 2 to 8-Opposite Parties ----------- For the Petitioner: Mr. Dronacharya, Advocate For Opp. Parties No.2&3: M/s Rajdular Sah and Farooque Moazzam, Advocates. -------- 04/

08.07.2009 Heard learned counsel for the petitioner, who was defendant no.1 in the court below. Also heard learned counsel for opposite no.6 Dilip Kumar Sah, who was defendant no.10 in the 2 court below. Vide order dated 28.07.2008, notices were sent to opposite parties no.1 to 3, who were plaintiffs of the suit in the court below and they have appeared through their learned counsel, who is also present.

2. This civil revision has been filed by defendant no.1- petitioner challenging order dated 26.06.2008, by which learned Subordinate Judge-I, Khagaria allowed the amendment petition filed by plaintiffs-opposite parties no. 1 to 3 on 29.05.2008 assuming that the plaintiffs wanted to add intervenor (purchaser) as defendant no.10 in place of plaintiff in the plaint and hence nature of the suit would not change and also allowed other defendants to file their additional written statement with respect to the amendment in the plaint.

3. The aforesaid suit was filed by the plaintiffs- opposite parties no.1 to 3 for declaration of their right, title and interest over the suit properties and also for a direction to the defendant first party to vacate the suit premises and hand over possession of the same to the plaintiffs and also for other ancillary reliefs including injunction.

4. It transpires from the impugned order that the defendants had filed their written statement and the intervenor (purchaser), who was added as defendant no.10, also filed his written statement, examined and cross-examined the witnesses. It also transpires from the said order that evidence were produced by the parties and even arguments of the parties have been closed in the 3 suit, which was, thereafter, fixed for judgment.

5. Learned counsel for the petitioner submits that the suit is pending since more than 12 years and the parties adduced their evidence, whereafter arguments were advanced by the parties and was closed on 22.07.2007 fixing the date of judgment by end of July, 2007. Learned counsel for the petitioner further submits that subsequently the case was transferred on a transfer petition filed by defendant no.10 and again the parties were heard and arguments were closed on 08.05.2008 and on 14.05.2008 notes of argument were also submitted and the date of judgment was fixed as

31.05.2008, but in the meantime an application for amendment was filed by the plaintiffs on 29.05.2008 (Annexure 1).

6. From a perusal of the said amendment application filed by the plaintiffs, it transpires that the plaintiffs have sought amendment in the third line of sub-paragraph(8) of paragraph 18 of the plaint for deleting the word `plaintiffs’ and in its place for adding defendant no.10 Dilip Kumar Sah, but it is not stated in the amendment application as to why the such amendment should be made.

7. From the averments of learned counsel for the parties and materials on record, it is quite apparent that the intervenor (purchaser) had much earlier been added as defendant no.10 in the suit on the basis of deed of sale dated 23.06.2000 with respect to the suit land executed by the plaintiffs in his favour, whereafter the suit had continued. Furthermore, 4 amendment application it is quite apparent that no prayer for transposition of defendant no.10 as one of the plaintiffs has been made either by the plaintiffs or by defendant no.10 himself and hence the said relief sought to be substituted by the plaintiffs cannot be allowed, specially in the facts and circumstances of this case.

8. It cannot be disputed that the sale-deed in question is of much earlier period, so is the addition of defendant no.10, who had already filed his written statement and according to the impugned order had also examined and cross-examined the witnesses and hence the plaintiffs were not justified in seeking such amendment after close of the arguments in the suit and just before the date fixed for delivery of the judgment.

9. The law is well-settled in this regard that after close of arguments and fixation of the date of judgment, no such application should have been allowed, but here not only amendment has been allowed, rather the defendants have been permitted to file their additional written statement with respect the said amendment, meaning thereby that the entire hearing of the suit of 1996 was to restart, which would be nothing but to fulfil the nefarious intention of the plaintiffs and defendant no.10 to delay the disposal of the suit.

10. In the said circumstances, the amendment petition filed by the plaintiffs is fit to be dismissed specially when the plaintiffs or defendant no.10 would not suffer any loss at all due to refusal of the said amendment because principle of lis pendence 5 would come to the help of the purchaser (defendant no.10), who would be bound by the judgment and decree of the trial court.

11. In such circumstances, this Court finds serious illegality in the impugned order of the learned court below, which has committed a gross jurisdictional error. Accordingly, the impugned order of the learned court below is hereby set aside and this civil revision is allowed with a direction to the learned court below to deliver its judgment without any further delay. MPS/ ( S. N. Hussain, J. )