- (1.) BY means of this writ petition the petitioner has chllenged the judgment of IIIrd Additional District Judge, Deoria (now known District Kushinagar ). BY the judgment impugned in this writ petition the amendment application which was filed in appeal was allowed.
(2.) THE fact for the purposes of decision can be summarised as under:- THE petitioner filed a suit for injunction restraining defendants from raising any construction over the land in dispute and thereafter by way of amendment relief for removal of the construction was also claimed. After filing the written statement and completion of evidence the trial Court decreed plaintiff's suit against which the defendant preferred appeal. During the pendency of the appeal application for amendment was moved by the defendant-appellants (45 Ka) by which various facts/pleas were sought to be added. Besides the other amendments, the fact that the defendant on account of their continuous peaceful possession acquired right by adverse possession was also sought to be added. The appellate Court after considering the fact and submission as was advanced from both the sides specifically rejected the inclusion/amendment of the facts/pleas in respect to acquisition of rights by adverse possession. The other part of the amendment to which there is no dispute at present was allowed by its order dated 18-8-1984. It appears that after about two years another amendment application was filed by the appellants by which again same plea of acquisition of right by adverse possession was sought to be added. This time the appellate Court allowed the amendment by its judgment dated 3-9-1987 against which the present writ petition has been filed. Heard learned counsel Sri Ramesh Chandra on behalf of the petitioner and Sri H. S. N. Tripathi who has appeared on behalf of the respondents.
(3.) IT has been submitted by the learned counsel for the petitioner that allowing of the amendment by the appellate Court, by the impugned judgment is clearly erroneous as the exercise as was made by the appellate Court was clearly barred by the Principles of Resjudicata. IT has been submitted by the learned counsel that as at the earlier occasion the appellate Court himself has rejected this very plea which was sought to be added by way of present amendment and therefore in respect to the same facts and the pleadings no contrary order could have been passed by the Court below. IT has also been submitted that on account of the amendment which has been allowed it will amont a permission to set up the new case by the defendants which may lead to fresh trial which will cause serious prejudice to the petitioner. Learned counsel who has appeared on behalf of the respondents has submittd that the appellate Court was fully justified in allowing the amendment, which can be done at any stage. It has been submitted that nature of the case has not been changed and in fact the amendment as was sought was explanatory in nature and there was nothing new therein and therefore no interference is required by this Court.;