- (1.) THIS writ petition seeks to challenge the order dated 20.09.2002 passed by 6th Additional District Judge, Raebareli whereby revision petition preferred by the opposite parties against the order dated 30.04.2001 allowing the amendment application has been set aside.
(2.) THE facts of the case, as culled from the pleadings available on the record of petition, are that in December, 1996, the petitioners filed a suit for permanent injunction against the opposite parties restraining them from interfering in their peaceful possession over the property in question. The suit was filed with the plaint allegation that one Smt Rameshwari Devi Sinha, widow of Kunwar Bahadur Sinha had died issuless. She was the Principal of an institution. After her retirement, she established a girls school in the year 1946 in the memory of her deceased husband. The plaint allegations further were that through a registered gift deed dated 26.09.1961, Rameshwari Devi Sinha gifted the entire building along with the land mentioned in the gift deed in favour of education department. On the basis of said gift deed, name of Donee was also recorded in the revenue records. It has also been alleged in the plaint that Smt Sinha also had her residential house in the school premises but since the accommodation was found short, she constructed another house with which respondents did not have any concern as it was being used by Smt Sinha not only for her residential purpose but also as Dharamshala and Goshala. It has further been pleaded that whatever property was gifted by Smt Sinha was separated by raising boundary wall. The property gifted by Smt Sinha in favour of education department comprises of plot nos. 441 and 451. The plaint allegations also contain assertion that Smt Sinha executed a registered gift deed in favour of petitioner no.2 -Society on 28.11.1994 and further that she also executed a power of attorney in favour of petitioner no.1 on 28.05.1988. It has further been pleaded in the plaint that the petitioners have made improvements and have also raised construction; and that they are in possession of the said property and further that their names were also recorded in the revenue records over the property gifted to them.
(3.) THE petitioners also moved an application under Order XXXIX Rule 1 and 2 of the CPC seeking grant of an ad -interim injunction restraining the defendants (opposite parties herein) from interfering in their possession. The trial court, accordingly, framed issues on the basis of pleadings and directed the petitioners to clarify as to which property was gifted by Smt Sinha to the plaintiffs through will and gift deeds dated 30.10.1996 and 28.11.1994. The said order was passed on 01.12.1998. In pursuance of the order dated 01.12.1998, the plaintiffs moved an application under Order VI Rule 17 and Order I Rule 10 read with Section 151 of CPC seeking amendment in plaint to clarify the pleadings as directed by the learned trial court. The said application was contested by the defendants and the learned court allowed the application by passing the order dated 30.04.2001 against which the defendants preferred a revision petition which was allowed by the order dated 20.09.2002 by the learned Additional District Judge, Raebareli. It is this order dated 20.09.2002 passed by the learned Additional District Judge which is the subject matter of challenge to the instant petition. Learned counsel for the petitioners has vehemently argued, while defending the order dated 30.04.2001 passed by the learned trial court, that revisional court has wrongly recorded a finding that even the persons, against whom no cause of action had accrued, have been sought to be impleaded unwarrantedly and further that by the amendment, the property in respect of which cause of action has accrued, is also being sought to be changed and certain properties are being attempted to be included as suit property regarding which no cause of action had accrued. Learned Senior Advocate, arguing on behalf of the petitioner, has submitted that the said finding arrived at by the learned District Judge is absolutely erroneous and is based on complete misreading of the application moved by the plaintiffs seeking amendment. He has further stated that application for amendment was moved in compliance of the order dated 01.12.1998 whereby learned trial court had required the plaintiffs to clarify as to which property is being claimed on the basis of will dated 30.10.1996 and which property is being claimed on the basis of gift deed dated 28.11.1994. Thus, the argument is, that since the amendment application was moved only with a view to ensure compliance of the order dated 01.12.1998 passed by the learned trial court, hence the learned revisional court below has erred in law in allowing the revision petition by giving findings that the amendment sought will change the nature of suit property.;