- (1.) This civil revision has been preferred against the order and formal order dated 11.4.2008 passed by the learned Additional District Judge, Court No. 1, Lucknow in Civil Appeal No. 257 of 2003, Lakhan Lal v. Lodeshwar Shukla and others, whereby, he rejected the application A-93 for amendment in the written statement. The brief facts, giving rise to this revision, are that the plaintiff/opposite party No. 2, Sri Lakhan Lal, filed a suit for permanent injunction against the defendants, Lodeshwar Shukla and others, on 28.1.1994, which was registered as O.S. No. 62 of 1994. The defendants filed the written statement and contested the suit. After considering the evidence produced by both the parties, the learned VIth Additional Civil Judge (Junior Division) Court No. 38, Lucknow, dismissed the suit vide judgment and decree dated 10.9.2003. The plaintiff, Lakhan Lal, preferred a Civil Appeal No. 257 of 2003, Lakhan Lal v. Lodeshwar Shukla and others, against the said judgment and decree dated 10.9.2003, in the Court of the District Judge, Lucknow, which was transferred to the Court of the Additional District Judge, Court No. 1, Lucknow.
(2.) During the pendency of the appeal, an application under Order VI, Rule 17 read with section 151, C.P.C., was moved on behalf of the defendant/respondent No. 1 for amendment in the written statement with the prayer that para Nos. 14(a) to 14(e) may be added in the written statement to the effect that after dismissal of the plaintiff's suit, he alongwith his associates has taken forcible possession over the property in suit on 14.9.2003, and the status of the plaintiff is not less than a trespasser having no right, title or authority to remain in possession over the said property. The defendant No. 1, being the absolute owner of the property in suit, is legally entitled to recover the possession from the plaintiff and as such, he is making his counter-claim for recovery of possession. The cause of action accrued to the defendant No. 1 on 14.9.2003 for filing counter-claim and thereafter, on each and every date. That a decree for mandatory injunction by way of counter-claim may be passed in favour of the defendant No. 1 directing the plaintiff to return back the possession of the property in suit after removing his belongings. The defendant No. 1 has sought some consequential amendments also in the written statement. The plaintiff has filed his objection against the said application and denied the defendants' allegations made in the amendment application. His objection is that the defendant No. 1 has not assigned any reason as to why the application was not moved for about five years, after delivery of judgment by the learned Trial Court. In fact, after the decision in the said suit, the defendant No. 1 has tried to take forcible possession illegally over the property in suit and in the said incident, the appellant sustained grievous injuries. The F.I.R. was lodged against him and after investigation, chargesheet was filed against the defendant No. 1 and he is facing trial. The plaintiff/appellant, was/is in possession over the property in suit. The counter-claim filed by the defendant No. 1 at this stage cannot be allowed legally. If the defendant No. 1 is not in possession over the property in suit, he may institute a suit for possession against the plaintiff.
(3.) After considering the record and hearing of the learned Counsel for both the parties, learned Additional District Judge, Lucknow, has rejected revisionist's application A-93 vide order dated 11.4.2008. Feeling aggrieved by the said order and formal order, the defendant/respondent No. 1, has preferred this revision.;