WRIT PETITION NO. 993 (M/S) OF 2004 v. Sri Anamulla Khan

Sri Aksar Sri Sahjad Smt. Shaheen

8. Respondents No. 5 to 8 sons of Hazi Rao Mustaq Khan,

9. Smt. Shahnaz – both daughters of Hazi Rao Mustaq khan respondent no.4 to 8 are r/o Mohalla Shahmada, Saharanpur.

10. Special Land Acquisition Officer, Sanyukta Sangthan, Joint organization, Saharanpur

11. L.D.A. Dioson Aera, through the Principal Civil Line, Sher Kothi, Roorkee Distt: Hardwar .. Defendants/ respondents

11.A. IIIrd Additional District Judge, Hardwar

12. State of U.P. through (Nagar Palika Parishad Roorkee through its Executive Officer), proposed to be through the Collector.

13. Prabhari Adhikari/Adhyaksha/Nagar Palika, Parisahad, Roorkee, Hardwar .... Proforma Respondents Sri Arvind Kumar Sharma, Counsel for the petitioners Standing Counsel for the respondent no.11 A to 13 and Sri Sharad Sharma, Counsel for the respondent no.1 to 11. 2 Hon’ble Rajesh Tandon, J. Dated: 19.08.2006 Heard Sri Arvind Kumar Sharma, Counsel for the petitioners, Standing Counsel for the respondents no.11 A to 13 and Sri Sharad Sharma, Counsel for the respondents no.1 to 11.

2. By the present writ petition, the petitioners have prayed for a writ of certiorari quashing the order dated 15.03.2000 passed by the IIIrd Additional District Judge, Roorkee (Annexure No. 1 to the writ petition), whereby the application filed under Rule VI Order 17 Order, Rule 10 order I of the C.P.C. has been dismissed.

3. Briefly stated, according the petitioners, instituted a suit being Original Suit No.98 of 1985 U.P. State & Ors. Vs. Amanullah Khan stating therein that Arzi Nos. 254, 255 and 256 situated at village Malikpur, Lateefpur, Tehsil Roorkee, District Hardwar and Arzi No.1384 of Village Roorkee are Nazul Lands. The Petitioners have further submitted that respondents no.2 to 10 have illegally claimed their possession through sale deed dated

30.06.1970 executed by the LDTA DIOSIS of Agra through attorney Sri A.N. Cheoroy, S/o late E.N. Cheoroy, R/o Sher Kothi Compound, Tehsil-Roorkee, District-Haridwar and the sale deed dated

30.06.1970 was challenged in the Original Suit No. 98 of 1985 on the ground that it was executed illegally and further prayed therein to restrain the opposite parties from changing the nature of the land and not to transfer the disputed land in any manner whatsoever. The said suit was dismissed vide order dated 18.04.1994.

5. Against the said order, petitioners preferred Civil Appeal being Civil Appeal No. 16 of 1998 State of U.P. Vs. Amanullah Khan and others in the Court of IIIrd Additional District Judge, Haridwar. Along with the aforesaid appeal, the petitioners preferred an amendment application too to the following effect: 3 “1- ;g fd okn i= dh rhljh iafDr esa ljdkj mRrj izns’k }kjk E;qfufliy cksMZ :M+dh }kjk izHkkjh vf/kdkjh@vf/k’kklh vf/kdkjh E;qfufliy cksMZ Mkd[kkuk :M+dh :M+dh lgkjuiqj dkVdj LFkku mRrjizns’k jkT; }kjk dySDVj] gfj}kjk ntZ fd;k tk;A”

6. Against the aforesaid amendment, respondent no. 2 preferred objections. The amendment application filed by the petitioners was rejected on 15.03.2000.

7. Aggrieved against the order dated 15.03.2000, the petitioners preferred a Civil Revision being Civil Revision No. 398 of 2001 before this Court, which was dismissed on 20.09.2004 on the ground of alternative remedy. A counter affidavit has been filed by the respondents, where in paragraph 6, it has been stated as under: “6. That at the cost of repetition it is pertinent to point out that the stand of the respondents in the written statement dated 3.12.1985 in particularly in relation to the contents agitated in para 24, 26, & 27 of the written statement, a specific plea and objection was taken with regards to the maintainability of the suit has framed by the plaintiffs. Its not the first occasion where the amendment was sought by the petitioner during the pendency of the trial since 1985 the respondents have been making repeated amendments on several occasions, but knowingly and deliberately they avoided to seek an amendment as prayed for in the present application for amendment which stood rejected by the order dated 15.3.2000. The same was not tenable for the reasons while recording evidences the learned trial court had given a categoric finding that the suit has not been framed in accordance to Rule 47 of the Nazul Land Rules and Order 27 Rule 1 & 2 of the Code of Civil 4 Procedure, and in the absence of there being a verification of the plaint signed by a competent person the suit itself deserved to be dismissed.”

8. The petitioners have submitted that they want to struck off the work “office in charge/ Executive Officer Municipal Board, Roorkee” and its place the work “Collector” be added and the amendement shall not change the nature of the proceedings and the same may be allowed under Order 1 rule 10 of CPC.

9. In the case of B.K.N. Pillai Vs. P. Pillai and another 2000 (38) ALR S.C. Page 338, the Apex Court has observed as under:- “The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But is equally true that the courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper courts administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.”

10. The law regarding amendment is very much clear as has been held in M/s Estralla Rubber Vs. Dass Estate 2001 (3) 5 Civil Court Cases 663 (S.C) after relying upon the judgment of B.K. Pillai v. Parameshwaran Pillai and another (2001) 1 SCC 712. The apex court has observed as under:- “3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.” to hamper courts

11. In view of the aforesaid fact, a writ of certiorari is issued quashing the order dated 15.03.2000. The amendment is allowed. The matter is sent back to the Appellate Court, which shall frame additional issues within a period of 2 months from the date of presentation of the certified copy of this order.

12. Subject to the aforesaid observation, the writ petition is allowed. No order as to costs.

19.08.2006 (Rajesh Tandon, J.) Rathour