- (1.) Heard Mr. S.K. Mehrotra, learned Counsel for the petitioners and Mr. Mahesh Chandra, learned Counsel for the opposite party No. 1. Being aggrieved with the order dated 3rd of May, 2010 passed by the District Judge, Lucknow in Civil Revision No. 70/2009, petitioners have filed the present writ petition. By means of order impugned learned District Judge has set aside the order dated 10th of February, 2009 passed by the Addl. Civil Judge (JD) Court No. 39, Lucknow and issued direction to decide issue No. 3 afresh in light of observations made in body of the judgment. By means of order dated 10th of February, 2009 the learned Addl. Civil Judge postponed to decide issue No. 3, which is "whether suit is barred by provisions of section 88(2) of the U.P. Avas Evam Vikas Parishad Act, 1965."
(2.) The learned Counsel for the petitioners submit that though the petitioners have already served the notice under section 88(2) of the Act on 18th of September, 1996 before institution of suit and thereafter he instituted the suit on 22nd of November, 1996, but according to him the same was escaped from mentioning in the pleading of the plaint by the learned Counsel for the petitioner/plaintiff, who is representing his case, whereas now he has moved an application under Order VI, Rule 17 for amendment of the plaint to bring the notice on record, which is pending consideration before the Trial Court. In support of his submission he has brought on record the notice as Annexure No. 4, which has been received in office of the opposite party No. 1 on 18th of September, 19%. In this back ground he submits that this application moved under Order VI, Rule 17 may be dealt with first and only thereafter the issue No. 3 be taken up for decision by the Trial Court otherwise the purpose of the application for amendment shall be frustrated.
(3.) Mr. Mahesh Chandra, learned Counsel for the Parishad strongly opposed the submission of learned Counsel for the petitioners and submitted that it is highly belated as the defendant filed the written statement in 1998, whereas suit is pending since 1996. The petitioner/plaintiff has come forward to move the application for amendment only in 2010. He further submitted that this notice, which has been proposed to be brought on record by way of amendment is absolutely a manufactured document as if had these been available with the petitioners, it would have been mentioned in the pleadings but it is not so. He further submits that even in this suit it is permitted to the petitioners under Order XXIII, Rule 3 to withdraw the suit and file afresh by removing detect in the plaint, accordingly he submits that there is no error in the order.;