- (1.) BY means of this Writ Petition moved under Article 226/227 of the Constitution of India, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 12-09-2005 (Annexure-5) and formal order (Annexure-6) passed by 1st Additional Civil Judge (J. D.), Haridwar, respondent No. 1.
(2.) BRIEF facts giving rise to this writ petition are that the petitioner is a plaintiff before the 1st Additional Civil Judge (J. D.), Haridwar. The petitioner filed a suit bearing No. 423/1991 for seeking injunction against the respond ent Nos. 2 to 4. The petitioner has al leged in his pleading that the petitioner is the tenant in the house of late Pan dit Atma Ram Sharma since more than 40 years. Thereafter Smt. Shakuntala Devi became the landlord and owner of the said property. But no receipt for the rent was given to the petitioner either by the Pandit Atma Ram Sharma or by Smt. Shakuntala Devi. The respondent Nos. 2 to 4 have neither any right nor any title over the property in dispute. The respondents have started threaten ing the petitioner to hand over the pos session of the house to them and threatened to demolish the said house. The petitioner filed a suit before the court below. The written statement was filed by the respondents. The trial court framed the issues and the case was fixed for final hearing. It is revealed from the perusal of the record that the evidence of PW 1 was recorded during hearing of the case. An application was moved un der Order 6 Rule 17 before the court below after the evidence of PW1 was recorded. The plaintiff proposed to amend his plaint and to delete the name of Smt. Shakuntala Devi as owner/landlord from the plaint and fur ther consequential amendments were sought by the petitioner. The objection was filed by the respondents and it was alleged that the said amendment would have the effect to take away the admis sion already made by the applicant. The nature of the suit would be changed by the proposed amendment. The learned 1st Addl. Civil Judge (J. D.) vide his order dated 12-09-2005 dis missed the amendment application on the ground that the said proposed amendment are inconsistent with the plaint case taken by the appellant and it takes away the admission already made by the plaintiff. It was further held by the learned Civil Judge that the final hearing of the case has already commenced, in view of the amendment of the civil procedure code incorporated under Order 6 Rule 17. The par ties can not be allowed to amend their pleadings after the final hearing has commenced. Hence amendment appli cation is not maintainable. I have heard learned counsel for the petitioner at length and perused the record.
(3.) LEARNED counsel for the peti tioner contended that the appellant came to know only after the evidence of PW 1 that Shakuntala Devi was not the owner/landlord after the death of Atma Ram Sharma. Soon thereafter, he moved the proposed amendments. Ad mittedly, PW1 is the witness of the pe titioner and the perusal of the applica tion of amendment reveals that the pe titioner had not alleged in his applica tion inspite of due diligence the party could not raise this point at earlier stage. It has already been mentioned in the application that due to mistake, this amendment could not be incorporated. Moreover, PW1 who was produced in evidence before the court below was the witness of the petitioner and was the wife of Pandit Atma Ram Sharma. The plaintiff himself cannot say that he was not aware about these fact. It is an afterthought. The amendment applica tion does not contain the averment of due diligence and non-availability of the information at the time of filing of the suit as alleged above. As such, the application was misconceived and was liable to be dismissed, The learned counsel for the pe titioner further contended that the amendment application does not change the nature of suit and the learned trial court has erred in holding that the proposed amendment would change the nature of suit. Perusal of the application reveals that the proposed amendment has been made to take away the admission already made by the petitioner. The defendant has taken the case in the written statement that they had received property from Shakuntala Devi. The proposed amendment would change the nature of suit. It is inconsistent with the ear lier pleadings. Apart this, amendment takes away the admission already made by the plaintiff in his plaint.;