- (1.) RAKESH Tiwari, J. Heard Counsel for the petitioner and the respondents.
(2.) IN this petition the judgment and order dated 3-10-1997 passed by the IIIrd Additional District Judge, Bijnor, in Civil Revision No. 4 of 1997, dismissing the revision of the petitioner, by which the order and judgment dated 13-12-1996 passed by the Ist Additional Civil Judge (Junior Division) Bijnor dismissing the amendment application of the petitioner was upheld, has been challenged. The brief facts giving rise to this petition are that a Civil Suit No. 308 of 1988 was filed against the Respondent No. 3 in the Court of Civil Judge (Junior Division) Bijnor and the same was transferred to the Court of Respondent No. 2. In the written statement (Annexure 3 to the writ petition) filed by Respondent No. 2, the defendant in the suit, denied the existence of passage in dispute stating that the petitioner had another approach to his Haveli, as per Schedule-Ka to the suit from a passage existing towards east, adjacent to the Haveli of Genda and Khawani. The petitioner along with the plaint had moved an application for an ad interim injunction and had also applied for issue of a commission for preparation of the site plain showing the Haveli along with the land appurtenant to the house and Sahan. The application of the petitioner was allowed and Commission was issued in the name of Court Amin who visited the site on 5-8-1988 and submitted his report dated 27-8-1988. The report of the Civil Court Amin was not clear and as such an objection was filed by the petitioner on 30-7-1990. On the basis of the pleadings of the parties the trial Court framed the followed three issues; " (1) Whether there is any passage of Haveli of plaintiff towards north as alleged in the plaint? (2) Whether the rainy water and water of daily use of the plaintiff's Haveli passes towards north as alleged in the plaint? (3) To what relief, if any, is the plaintiff entitled?" In the mean time an application was moved on behalf of the petitioner under Order VI, Rule 17 C. P. C. on 16-9-1996. The Respondent No. 3 filed an objection dated 9-12-1996 to the amendment. The amendment application was rejected vide order and judgment dated 13-12-1996 by the Ist Additional Civil Judge (Junior Division) Bijnor. Aggrieved by the order and judgment dated 13-12-1996, the petitioner filed a revision before the District Judge, Bijnor which was registered as Civil Revision No. 4 of 1997. The revision was also dismissed by the order and judgment dated 3-10-1997 passed by the Respondent No. 1 vide Annexure 8 to the writ petition.
(3.) THE contention of the Counsel for the petitioner is that while rejecting the application for amendment the Courts below failed to consider that the amendment was necessary for determination of all controversies between the parties and further that no additional evidence was required in the case. He submits that from a perusal of Annexure 7 to the writ petition it is apparent on the face of record that the order of Respondent No. 2 is not in accordance with law. It is further contended that the revision has been dismissed without appreciating the argument advanced on behalf of the petitioner and apart from it the revisional Court has failed to consider the provisions of Order VI, Rule 17 CPC. At the time of admission this Court passed the following order on 25-11-1997: "issue notice. Until further orders, further proceedings in Original Suit No. 308 of 1988 pending in the Court of Ist Additional Civil Judge (Junior Division) Bijnor shall remain stayed. " The proceedings of the Courts below are in abeyance for the last almost five year. The power to allow amendment is wide and can be exercised at any stage of the suit in the interest of justice. It is settled legal position that amendment cannot be claimed as a matter of right under any circumstance, but it is equally settled principle of law that a Court while deciding the prayer for amendment of the plaint should not adopt hiper-technical approach.;