Shiv Shankar And Others v. Addl. Session Judge Fifth

1. Heard Shri Udai Bhan Pandey, learned counsel for the petitioners.

2. By means of the present petition filed under Article 227 of the Constitution of India, the petitioners have challenged the validity of order dated 31.10.2018 passed by the learned Civil Judge, Junior Division, Court No.36, Lucknow in Regular Suit No.386 of 2013, whereby, the petitioners' application for amendment of plaint was rejected.

3. The petitioners had challenged the order dated 31.10.2018 by filing Civil Revision No.142 of 2019, which has been dismissed by means of judgment and order dated 15.07.2025 passed by the learned Additional District Judge, Court No.4/ Special Judge, EC Act, Lucknow and the petitioners have challenged the validity of revisional order also.

4. The petitioners had filed the aforesaid suit for a decree of perpetual injunction, restraining the defendants from interfering in sole legal ownership of the plaintiffs–petitioners in respect of the property in dispute and restraining them from setting up any drain etc, towards the Sahan land of the plaintiffs–petitioners. The suit was filed on 01.04.2013. The defendants filed the written statement on 07.09.2013, stating that the land in dispute is not Sahan of the plaintiffs–petitioners rather it is a common passage. The site plan was also annexed with the written submission. In paragraph nos.3 & 4 of the written statement, the defendants specifically stated that the land claimed by the plaintiffs–petitioners to be as Sahan land is a 10 feet wide passage which is used both by the plaintiffs–petitioners and the defendant no.1. The door of the defendant no.1 already exists towards 2 A227 No. 6674 of 2025 the said land. The suit has been filed by the plaintiffs–petitioners subsequently while the door was already in existence.

5. The plaintiffs–petitioners filed the replication on 10.12.2013 wherein, they did not dispute the averment made in the written statement that a door towards the land in dispute was existing since before filing of the suit. On

04.10.2018, the plaintiffs–petitioners filed an application for amendment of the plaint. It is recorded that on the plaintiffs'–petitioners' application dated

16.05.2014, a commission for local inspection was issued, which was executed on 28.11.2015. The Commissioner submitted a report stating that a new construction has been raised and a door has been set up towards the plaintiffs'–petitioners' land. The plaintiffs–petitioners sought to amend the suit so as to incorporate the plea that when the plaintiffs–petitioners failed to get an order of temporary injunction after filing of the suit, the defendants have forcibly raised construction since 28.11.2015 and have put up a door. The plaintiffs–petitioners sought to add the relief of mandatory injunction for removal of the constructions raised on the land in dispute.

6. The defendants filed objection against the amendment application stating that the door in question was put up in the month of March, 2013 and a roof was also laid. The suit was filed in the month of December, 2013 whereas, the construction of the house of defendant no.1 stood completed in the month of March, 2013. The plaintiffs–petitioners did not raise any objection when the defendant no.1 had set up a door towards the passage. The defendants further stated in the objection that it is specifically pleaded in the written statement that the door and the construction existed since before. The trial court rejected the amendment application vide impugned order dated

27.11.2018 wherein, it is mentioned that as per the documentary evidence filed by the plaintiffs–petitioners themselves in the shape of paper no.C27/7, it is clear that the disputed construction stood completed on 14.04.2013. The defendants have also pleaded in the written statement that they have set up a door and plaintiffs–petitioners submitted a replication on 10.12.2013. The plaintiffs–petitioners had full knowledge of the construction raised in the year 2013 yet the amendment application was filed on 04.10.2018, while the matter was fixed for recording evidence.

7. The trial court referred to the proviso of Order VI, Rule 17 of Code of Criminal Procedure, which provides as follows: 3 A227 No. 6674 of 2025 "Order VI, Rule 17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial"

8. The trial court rejected the application as the amendment application was filed belatedly while the matter was at the stage of evidence and construction was existing the year, 2013 the knowledge of plaintiffs–petitioners. The revisional court has also affirmed the order of the trial court.

9. Learned counsel for the petitioners has submitted that trial of the suit has not yet commenced as evidence has not yet been produced and, therefore, the proviso of Order VI Rule 17 of Code of Criminal Procedure would not apply in the present case. He has further relied on the decision of Hon'ble Supreme Court passed in the case of Vidyabai & Ors. Vs. Padmalatha & Anr. reported in 2008 SCC OnLine SC 1865. This judgement refers to the earlier judgement of the Hon'ble Supreme Court in the case of Kailash Vs. Nanhku reported in (2005) 4 SCC 480 wherein, it was held that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. Admittedly, in the present case, issues had already been framed and the case had been fixed for recording evidence of the plaintiffs–petitioners when the amendment application was filed, therefore, trial of the suit had already commenced. In these circumstances, the application for amendment can only be allowed when the court comes to a conclusion spite of the exercise of due diligence, the plaintiffs–petitioners could not have moved the application amendment earlier before commencement of the trial. The facts of the case as evident from the pleadings of the parties reveal that the construction in dispute was in existence at least since before filing of the written statement by the defendants on 07.09.2013, as this plea was specifically raised in the written statement and not denied by the plaintiffs–petitioners in the replication filed by them.

10. In the circumstances, facts of the case reveal lack of due diligence on the part of the plaintiffs–petitioners in not raising a plea for removal of 4 A227 No. 6674 of 2025 construction in the plaint and, in any case, in not filing an application of amendment of the plaint promptly before commencement of trial. Thus, the order passed by the trial court, as affirmed by the revisional court, is a well reasoned order which does not suffer from any error or illegality.

11. The petition lacks merit and the same is accordingly dismissed. . December 2, 2025 V. Sinha (Subhash Vidyarthi,J.) VAISHALI SINHA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Udai Bhan Pandey, learned counsel for the petitioners.

2. By means of the present petition filed under Article 227 of the Constitution of India, the petitioners have challenged the validity of order dated 31.10.2018 passed by the learned Civil Judge, Junior Division, Court No.36, Lucknow in Regular Suit No.386 of 2013, whereby, the petitioners' application for amendment of plaint was rejected.

3. The petitioners had challenged the order dated 31.10.2018 by filing Civil Revision No.142 of 2019, which has been dismissed by means of judgment and order dated 15.07.2025 passed by the learned Additional District Judge, Court No.4/ Special Judge, EC Act, Lucknow and the petitioners have challenged the validity of revisional order also.

4. The petitioners had filed the aforesaid suit for a decree of perpetual injunction, restraining the defendants from interfering in sole legal ownership of the plaintiffs–petitioners in respect of the property in dispute and restraining them from setting up any drain etc, towards the Sahan land of the plaintiffs–petitioners. The suit was filed on 01.04.2013. The defendants filed the written statement on 07.09.2013, stating that the land in dispute is not Sahan of the plaintiffs–petitioners rather it is a common passage. The site plan was also annexed with the written submission. In paragraph nos.3 & 4 of the written statement, the defendants specifically stated that the land claimed by the plaintiffs–petitioners to be as Sahan land is a 10 feet wide passage which is used both by the plaintiffs–petitioners and the defendant no.1. The door of the defendant no.1 already exists towards 2 A227 No. 6674 of 2025 the said land. The suit has been filed by the plaintiffs–petitioners subsequently while the door was already in existence.

5. The plaintiffs–petitioners filed the replication on 10.12.2013 wherein, they did not dispute the averment made in the written statement that a door towards the land in dispute was existing since before filing of the suit. On

04.10.2018, the plaintiffs–petitioners filed an application for amendment of the plaint. It is recorded that on the plaintiffs'–petitioners' application dated

16.05.2014, a commission for local inspection was issued, which was executed on 28.11.2015. The Commissioner submitted a report stating that a new construction has been raised and a door has been set up towards the plaintiffs'–petitioners' land. The plaintiffs–petitioners sought to amend the suit so as to incorporate the plea that when the plaintiffs–petitioners failed to get an order of temporary injunction after filing of the suit, the defendants have forcibly raised construction since 28.11.2015 and have put up a door. The plaintiffs–petitioners sought to add the relief of mandatory injunction for removal of the constructions raised on the land in dispute.

6. The defendants filed objection against the amendment application stating that the door in question was put up in the month of March, 2013 and a roof was also laid. The suit was filed in the month of December, 2013 whereas, the construction of the house of defendant no.1 stood completed in the month of March, 2013. The plaintiffs–petitioners did not raise any objection when the defendant no.1 had set up a door towards the passage. The defendants further stated in the objection that it is specifically pleaded in the written statement that the door and the construction existed since before. The trial court rejected the amendment application vide impugned order dated

27.11.2018 wherein, it is mentioned that as per the documentary evidence filed by the plaintiffs–petitioners themselves in the shape of paper no.C27/7, it is clear that the disputed construction stood completed on 14.04.2013. The defendants have also pleaded in the written statement that they have set up a door and plaintiffs–petitioners submitted a replication on 10.12.2013. The plaintiffs–petitioners had full knowledge of the construction raised in the year 2013 yet the amendment application was filed on 04.10.2018, while the matter was fixed for recording evidence.

7. The trial court referred to the proviso of Order VI, Rule 17 of Code of Criminal Procedure, which provides as follows: 3 A227 No. 6674 of 2025 "Order VI, Rule 17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial"

8. The trial court rejected the application as the amendment application was filed belatedly while the matter was at the stage of evidence and construction was existing the year, 2013 the knowledge of plaintiffs–petitioners. The revisional court has also affirmed the order of the trial court.

9. Learned counsel for the petitioners has submitted that trial of the suit has not yet commenced as evidence has not yet been produced and, therefore, the proviso of Order VI Rule 17 of Code of Criminal Procedure would not apply in the present case. He has further relied on the decision of Hon'ble Supreme Court passed in the case of Vidyabai & Ors. Vs. Padmalatha & Anr. reported in 2008 SCC OnLine SC 1865. This judgement refers to the earlier judgement of the Hon'ble Supreme Court in the case of Kailash Vs. Nanhku reported in (2005) 4 SCC 480 wherein, it was held that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. Admittedly, in the present case, issues had already been framed and the case had been fixed for recording evidence of the plaintiffs–petitioners when the amendment application was filed, therefore, trial of the suit had already commenced. In these circumstances, the application for amendment can only be allowed when the court comes to a conclusion spite of the exercise of due diligence, the plaintiffs–petitioners could not have moved the application amendment earlier before commencement of the trial. The facts of the case as evident from the pleadings of the parties reveal that the construction in dispute was in existence at least since before filing of the written statement by the defendants on 07.09.2013, as this plea was specifically raised in the written statement and not denied by the plaintiffs–petitioners in the replication filed by them.

10. In the circumstances, facts of the case reveal lack of due diligence on the part of the plaintiffs–petitioners in not raising a plea for removal of 4 A227 No. 6674 of 2025 construction in the plaint and, in any case, in not filing an application of amendment of the plaint promptly before commencement of trial. Thus, the order passed by the trial court, as affirmed by the revisional court, is a well reasoned order which does not suffer from any error or illegality.

11. The petition lacks merit and the same is accordingly dismissed. . December 2, 2025 V. Sinha (Subhash Vidyarthi,J.) VAISHALI SINHA High Court of Judicature at Allahabad, Lucknow Bench