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Khaleek v/s Naaz Alam


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Matters Under Article 227 No. 9848 of 2016

    Decided On, 15 December 2016

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PANKAJ MITHAL

    For the Petitioner: Rajiv Sisodia, Dhirendra Kumar Srivastav, Advocates. For the Respondent: Krishna Mohan Garg, Advocate.



Judgment Text

1. Heard Sri Rajiv Sisodia, learned counsel for the petitioner. Sri K.M. Garg has appeared for respondents no. 1 and 2.

The respondents no. 1 and 2 had filed Original Suit No. 166 of 2013 for dispossession of the petitioner and for recovery of possession over the suit premises. Subsequently after a written statement was filed and a Will dated 10.1.2013 alleged to have been executed by late Mahboob Ahmad was set up, they filed an application for amending the plaint so as to add a relief for declaring the said Will as null and void.

2. The amendment application has been allowed by the court of first instance vide order dated 3.2.2016 and the revision against the same has been dismissed on 14.9.2016.

3. The above two orders have been impugned by means of this petition.

4. The submission of Sri Sisodia, learned counsel for the petitioner is that the suit was at the final stage of hearing and the amendment could not have been permitted in view of the fact that Order 6, Rule 17 CPC does not permit amendment after the commencement of the hearing. Secondly, respondents no. 1 and 2 had the knowledge of the Will from the very beginning and therefore the relief with regard to said Will could have been claimed at the time of filing of the suit itself.

5. Learned counsel for the petitioner on query being made accepts that the relief for cancellation or declaration of the Will to be null and void was not barred by time as on the date of filing of the amendment application or on the date the amendment was allowed.

6. It is settled law that though ordinarily amendment in pleadings is not permissible after the commencement of the hearing but it is not an absolute rule. In a given case pleadings can be amended at any stage even during the appeal.

7. There is no material on record which can clinchingly show that the respondents had the knowledge of the aforesaid Will at the time of the institution of the suit or to prove that they have not acquired knowledge of the Will after the filing of the written statement.

8. Thus, in order to avoid multiplicity of the suits as also in the larger interest of the petitioner if the amendment has been permitted, no injustice has been caused to the petitioner. The petitioner can file additional written statement to the amended plaint whereupon the suit would be decided on merits in accordance with law.

9. In these circumstances, I do not consider it to be a fit case for interference under Article 227 of the Constitution of India and the petition is dismissed with the direction to the court below to proceed and decide the above suit expeditiously by curtailing al

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l unnecessary adjournments and fixing short dates. In case any adjournment becomes imperative, not to allow it without imposing cost of at least Rs. 500/- per adjournment upon either of the parties seeking adjournment. 10. The petition is dismissed with the above direction.
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