- (1.) S. K. Singh, J. Pleadings between the parties are complete and, as further proceeding in suit No. 94 of 1972 has been stayed by this Court, with the consent of parties, the matter is being heard and finally disposed of.
(2.) BY means of this writ petition, the petitioner has challenged the order of Addl. District Judge/respondent No. 1 dated 10th September, 1985 (Annexure A to the Writ Petition ). Respondent No. 1 by allowing the revision, filed by Respondent No. 2, has rejected the amendment application as was filed by the plaintiff. Smt. Sohan Devi, mother of petitioner had filed a suit No. 94 of 1972 against Respondent No. 2 with the prayer that the sale deed dated 25-8-65 which was said to have been executed by the plaintiff in favour of the defendant be cancelled. It was claimed by the plaintiff that fraud was played on her as she was given to understand that she was executing a mortgage deed. The defendant got sale deed executed by fraud. Other pleadings were also made by her in the plaint. After filing the suit, plaintiff Smt. Sohan Devi died upon which the petitioner came to be substituted. She filed an amendment application in January 1973 by which two other deeds in favour of Mathura Prasad and an agreement to sale dated 25-8-65 were sought to be cancelled. By the said amendment application which has been annexed as Annexure 'c' to the writ petition various factual averments were also sought to be added. The relevant amendment, for the purposes of disposal of this writ petition, which was mentioned in the amendment application will be useful to be referred below : Para-2: That at the end of para 1-A the following words be added : "that the plaintiff and defendants 2 and 3 are also co-owners along with Sohan Devi as heirs of late Raghunath Prasad, their father, who had married Smt. Sohan Devi under the Special Marriages Act (Act No. III of 1872) as amended by Act No. XXX of 1923. " Para-9: After para 4 paragraph 4-A be added with the following words: - "that Smt. Sohan Devi was married to late Rai Bahadur Raghunath Prasad I. C. S. the father of the plaintiff and defendants Nos. 2 and 3 under the Special Marriage Act. She had only 1/3rd share in the properties in suit specified at the foot of the plaint by inheritance from late R. B. Raghunath Prasad the original owner and 2/3rd belongs to his lineal descendants viz. the plaintiff and her sisters defendant Nos. 2 and 3. As such the deeds are void and ineffective so far as the 2/3rd share of the palintiff and defendants 2 and 3 is concerned. The deeds were obtained without the consent of plaintiff and defendants No. 2 and 3 and are not enforceable. " The amendment application which was moved by the petitioner was rejected by the trial Court by its order dated 1-11-77 against which the petitioner appears to have filed civil revision before this Court which was numbered as Civil Revision No. 2817 of 1977 which too was dismissed on 16-1-80. It appears that on 16-1-80 the plaintiff moved second amendment application which has been annexed as Annexure 'f' to this writ petition. By means of this amendment, the petitioner wanted to get para 6-A added which refers the factual aspect/assertion and towards the relief clause as relief 'cc'. Para 6-A and (cc) as has been stated in the second amendment application is also being quoted: 6-A. "that in the alternative it is pleaded that the deed in question is enforceable only to the extent of 1/3rd share of Smt. Sohan Devi, deceased plaintiff, since Smt. Sohan Devi was married to late Rai Bahadur Raghunath Prasad on 31-5-1947 under the Special Marriages Act and R. B. Raghunath Prasad died intestate on 4-6-1954, leaving behind his widow and the three daughters as his lineal descendants, inherited by his aforesaid descendants. " In the relief clause, add a relief as under: " (cc) or in the alternative it be decreed that the deed in question is valid and operative only to the extent of 1/3rd. "
(3.) THE second amendment application referred above was allowed by the trial Court by its order dated 4-12-81, against which the revision was filed by the defendant which came to be allowed by the II Additional District Judge, Allahabad by the judgment 10-9- 85 which has been challenged before this Court. In has been submitted by the learned Counsel for the petitioner that the trial Court has rightly allowed the amendment application as by allowing the amendment neither the nature of the case nor pleadings were going to be changed and in fact it was different approach with the factual aspect which was sought to be added. It was further argued that the amendment can be allowed at any stage and therefore there was no jurisdictional error in the order of the trial Court. The learned Counsel for the respondents in response to the aforesaid submission has argued that by earlier amendment application various facts were sought to be added which was refused upto this Court and therefore rejection of second amendment application which contain same facts by respondent No. 1 cannot be said to be unjustified and illegal in any manner. The learned Counsel for the respondents has taken the Court towards the factual statement as made in both the amendment applications and has tried to demonstrate that the facts as has been stated in the second amendment application is just reiteration of first application and therefore its rejection by respondent No. 1 cannot be said to be erroneous.;