S.N.SRIVASTAVA, J. - (1.) PETITION in hand has its genesis in the impugned order dated 10-10-2003 passed in Civil Appeal No. 276 whereby application No. 269-C under Order 41, Rule 27 C.P.C. and application No. 296-C for amendment in the written statement have been rejected by the lower appellate Court.
(2.) IT would appear from the record that suit No. 912 of 1990 was instituted by respondent No. 2 for the relief of permanent injunction. The aforestated suit culminated in being decreed and this led to filing of appeal before the lower appellate Court. During pendency of appeal, the petitioners preferred Application Nos. 269-C under Order XLI, Rule 27 C.P.C. and 296-C for amendment in the written statement. The aforestated Applications came to be rejected by means of impugned order dated 10-10-2003 and it is in the above backdrop that the present petition has been instituted for the relief of writ of certiorari quashing the impugned order. I have heard learned counsel for the parties at length and have also traversed upon the impugned order for its intrinsic merit.
(3.) THE learned counsel for the petitioners who was arrayed as respondents in the suit canvassed that the amendment sought to be incorporated in the written statement was imperative inasmuch as they were seeking to introduce alternative plea of ownership in relation to land in question which is permissible in law. It was further submitted that application for additional evidence was apt to be allowed inasmuch as the ingredients as embodied in Order 41, Rule 27 of the C.P.C. bulked large and consequently impugned order were liable to be set aside. Per contra, the learned counsel for the Opp. Parties tried to buttress the impugned order stating that the amendment sought to be introduced runs counter to the original pleading inasmuch as in the original pleading the property in question was claimed to be property of Nagar Mahapalika Agra while by means of amendment, they were trying to introduce a new pleading claiming their title over the property in question which is in contrariety of the original pleading as taken in the plaint. The learned counsel further contended that the application for additional evidence was rightly rejected as there was justifiable ground to make out a case warranting admissibility of additional evidence at appellate stage.;