Trilok Chand Gupta v. Sri Gopal Krishan

(Annexure No. 6 to the writ petition) passed by the Deputy Director of Consolidation/Additional Collector, Haridwar (for short D.D.C.) whereby the substitution/amendment application, which was moved by the petitioner before the revisional court was partly allowed. The petitioner has also challenged the order dated 6-9-2003 passed by the Consolidation Officer, Roorkee (West) whereby it was 2 ordered that the name of Trilok Chand and Sudhir Kumar be deleted from the entire land of Khata Khatauni No. 8 of village Rahmatpur Ahatmall, Pargana and Tehsil Roorkee and in their place, name of original tenure holder Anil Kumar Son of Jai Bhagwan, Smt. Kusum Wife of Gopal Krishan and Smt. Manorama wife of Jai Bhagwan be recorded thereon as Bhumidhar with transferable rights. The petitioner does not press his second prayer whereby the order dated 22-10-2008 passed by the D.D.C. was assailed.

#4. Learned counsel appearing for the revisionist- petitioner has contended that the learned D.D.C. has committed a manifest error of law in rejecting the part of amendment application in so far as proposed paragraphs nos. 12,13 and 14 were sought to be added in the memo of revision petition.

#5. The amendment application was moved on the ground that late Smt. Manorama Devi (respondent no. 1 in the revision) had died on 2-4-2008 and it is necessary to substitute her legal heirs for continuation of the revisional proceeding and prayer was made that against the name of Smt. Manorama Devi word deceased be added and her legal heirs 1/1 to 1/9 as mentioned in the application be substituted. Apart from this, the petitioner has also sought consequential amendment in the substitution application and also sought to add paragraph nos. 12, 13 and 14 thereby intended to add some pleadings relating to late Manorama Devi.

#6. It is pertinent to mention here that the petitioner-revisionist himself had filed objection under Section 9-A (2) of the Consolidation of Holdings Act (for 3 short the Act) before the Consolidation Officer, which were decided on merits vide order dated 6-9-2003. Aggrieved by the said order, revision was preferred by the petitioner before the D.D.C., which is still pending for disposal.

#7. During the pendency of the revision, this substitution/amendment application was moved. The learned D.D.C., while allowing the substitution part of the application has rejected the prayer of amendment by adding proposed paragraphs nos. 12, 13 and 14 to the revision petition on the ground that such amendments could not be allowed in the revision. The text of paragraph no. 12, 13 and 14 pertains to additional pleadings relating to late Manorama Devi and the amendment is out of scope of the revision. The learned D.D.C. has allowed the substitution application to implead the legal heirs of the deceased as per provision of Section 174 of the U.P. Z.A. and L.R. Act, since there is no dispute to this fact that the land in question was self acquired by Manorama Devi. So far as this part of order is concerned, the petitioner has not assailed that part of the order seriously before this Court.

#8. Learned counsel the petitioner has vehemently contended that the amendment of pleadings should not have been disallowed because the amendment sought for by the petitioner is necessary for just and proper decision of the controversy. In support of his contention, learned counsel for the petitioner has relied upon the decision of this Court in the case of Shri Prabhakar Uniyal and others Vs. Smt. Chinta Devi and others [2006(2) U.D., Page 90], wherein paragraph no. 24 reads as under:- 4 (cid:147)24. Thus in view of the above, the amendment of the pleadings should ordinarily be allowed if the amendment is found to be necessary for just and proper decision of the controversy, if it does not alter the nature of the suit or takes away the accrued right of the parties.(cid:148)

#9. Learned counsel for the petitioner has also placed reliance upon the verdict of the Apex Court in the case of Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others [2006, (4), S.C.C., Page 385], wherein it has been observed in paragraph no. 18 as under:- (cid:147)18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub- serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.(cid:148)

#10. Learned counsel contesting respondents, who are legal heirs of late Manorama Devi, while supporting the impugned order passed by the D.D.C., has submitted that the cause of action to add the proposed amendment was open to the petitioner during the life time of late Manorama Devi and the petitioner had filed objection under Section 9-A(2) of the Act before the Consolidation Officer. According to the learned counsel, the petitioner by way of amendment has tried to set up totally a new case and the proposed amendment would 5 change the basic structure of the stand taken by the petitioner. Learned counsel for the respondent also contended that not a single reason has been assigned by the applicant-petitioner as to why the proposed amendment is necessary for a just decision of the controversy and that no reason has been given by the petitioner that the pleadings of paragraph nos. 12, 13 and 14 could not be taken in the objection under Section 9- A(2) of the Act for a long span of about ten years. It was also contended that the petitioner instead of filing an appeal against the order passed by Consolidation Officer has resorted to challenge the order in revision before the learned D.D.C. wherein only the propriety of the order dated 6-9-2003 is to be examined, therefore, the prayer of amendment of pleadings has been rightly refused.

#11. In support of his contention, learned counsel for the respondents Sri Sunder Khatri has placed reliance on the case of Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhari Naginbhai (deceased) through LRs. [I (2009) SLT 692] wherein the Apex Court has observed that (cid:147)the question as to whether an application for amendment should be allowed in spite of delay and laches in moving the same, would depend upon the facts and circumstances of each case wherefor a judicial evaluation would be necessary.(cid:148) It was held that if the application for amendment of plaint alters the basic structure of suit, the amendment is impermissible.

#12. I have perused the impugned order passed by the learned D.D.C. It has been held by the D.D.C. that the amendment, which was sought by the revisionist is out of scope of revisional proceeding and no permission can be given to add proposed paragraph nos. 12, 13 and 6 14 to the revision, particularly because the revision has to be decided on the basis of the pleadings made before the Consolidation Officer by late Smt. Manorama Devi. Even though no reason has been assigned by the petitioner- revisionist in his application for amendment as to why these amendments are necessary resolve controversy between the parties, the only prayer was made that the amendment be allowed and names of the legal heirs of late Manorama Devi be substituted and after the prayer of substitution, after paragraph no. 10, proposed paragraph nos. 11, 12, 13 and 14 were sought to be added to the revision petition. However, the D.D.C. by his order dated 4-10-2008 has allowed add paragraph no. 11 to the revision and has rejected the part of amendment relating to paragraph of 12, 13 and 14.

#13. Having considered the submissions of the learned counsel for the parties as discussed above, I am of the view that by way of proposed amendment the petitioner wants to add some new pleadings to improve his case against Manorama Devi (deceased). The petitioner had already filed his objection against her under Section 9-A(2) of the Act before the Consolidation Officer. The learned D.D.C. has not committed any error in rejecting the part of amendment sought to made. The impugned order does not suffer from any manifest error of law. There is no perversity in the order passed by D.D.C. Accordingly, the writ petition is devoid of merits and is liable to be dismissed outright.

#14. costs. RCP The writ petition is dismissed. No order as to (B.S.Verma,J.) 7