- (1.) The present petition under Art. 226 of the Constitution of India has been filed by the petitioner challenging the order of the IIIrd Addl. Civil Judge, Varanasi, dated 8-12-1983 dismissing the petitioner's application seeking permission to amend her written statement at the stage of appeal and the order dated 21-7-1984 dismissing the petitioner's application for staying the hearing of the appeal, during the pendency of the petitioner's civil suit No. 400 of 1983.
(2.) The facts necessary for the decision of the writ petition are as under : The petitioner is real sister of respondent No. 2, namely, Shashti Charan Dey. During the lifetime of the father of the petitioner, house No. B-17/81, situated at Mohall a Tit Bhandeshwar, Varanasi was purchased in the name of the mother of the petitioner, and respondent No. 2, along with the petitioner and all her brothers were living in the house. The petitioner was married to one Shri Bhawani Prasad Dutta who was working as an employee in the concern of the petitioner's father. The case of the petitioner is that she was married to Sri Bhawani Prasad Dutta as the father of the petitioner had so much of affection for the petitioner that her father wanted that the petitioner should continue to live with him throughout and with that end, the petitioner was married to an employee of the petitioner's father's concern so that the petitioner's husband may live with the petitioner as 'Ghar Jamai'. After marriage, the petitioner and her husband continued to live in the house in dispute during the life time of the petitioner's father and mother. No objection was raised by any of the brothers during the life time of the petitioner's father and mother. The case of the petitioner is that the petitioner's husband was a freedom fighter in his old age they lost one of their sons Kedar Nath Dutta, who expired on 12-12-1965. The petitioner's husband could not bear the shock of the death of his son as a consequence of which the petitioner's husband became Sadhu, left the city and at present is residing in Bengal as Sadhu. The petitioner since then is without any help from her husband and is herself looking after her remaining children. The father of the petitioner died in the year 1965. The mother of the petitioner was very old and extremely feeble and lost her vision, due to the death of her husband and grandson, she was also mentally disturbed. Taking advantage of her feeble health, deteriorating mental condition, the petitioner's brother (respondent No. 2) is alleged to have got a gift deed executed from the petitioner's mother of the disputed house in his favour on 25-2-1972 and kept the said gift deed secretly with him without brining it to the knowledge of the petitioner. The mother of the petitioner and respondent No. 2 also died in the month of May, 1976. Respondent No. 2 filed a suit being suit No. 149 of 1975 alleging that the petitioner is only a licensee in the house in dispute and should be evicted from the said house. The petitioner contested the aforesaid suit and denied that respondent No. 2 is the sole owner of the house and contended that the gift deed alleged to have been executed by the petitioner's mother in favour of respondent No. 2 is a document extracted by the respondent No. 2 from his mother, at the age of 85 years in a state of mind, when the petitioner's mother was not able to understand the contents of the document.
(3.) The learned trial Court decreed the suit of the plaintiff-respondent No. 2 holding the petitioner to be licenseee and directed eviction of the petitioner from the house in dispute. Aggrieved thereby the petitioner filed Civil Appeal No. 150 of 1982, which at present is pending in the Court of the IIIrd Addl. Civil Judge, Varanasi. During the pendency of the present appeal, the petitioner first moved an application seeking amendment of her written statement taking a plea that the petitioner was in adverse possession of the house in dispute. The said amendment application was rejected by the Ist Addl. District Judge, Varanasi, vide his order, dated 2-4-1983. The petitioner then moved the present application seeking amendment in her written statement. This application has also been rejected on 8-12-1983. Against this order, the petitioner has filed the present writ petition.;