Mahendra Dayal, J. - (1.) The petitioner by means of this writ petition, under Article 226 of the Constitution of India, has prayed for setting aside the order dated 15.07.2017 passed by the Additional Civil Judge (Senior Division), Court No.21, Lucknow in Suit No.1773 of 2014, whereby the amendment application filed by the respondents No.2 to 4 has been allowed subject to payment of cost of Rs.1,000/-.
(2.) I have heard learned counsel for the parties and have perused the record.
(3.) The facts in brief are that the opposite party No.4 constructed a multi-storied residential complex in Mall Avenue, Lucknow. The petitioner purchased Flat No.405 in the building by means of registered sale-deed dated 25.01.2011. When the sale-deed was being executed in his favour, the opposite party No.4 asked the petitioner as to whether he would like to take possession also because the finishing working was going on in the flat. It was assured that as soon as the finishing of the flat is completed, the same shall be handed over to the petitioner. According to the petitioner, he contacted the Managing Director of the opposite party No.4 for providing possession of the flat, but the possession was not handed over to him. The opposite parties No.2 and 3 filed a suit for permanent injunction against the opposite party No.4 in the Court of Civil Judge (Senior Division), Lucknow, which was registered as Regular Suit No.1773 of 2014. It was pleaded by the opposite parties No.2 and 3 in the aforesaid suit that originally the flat was allotted to Babu Banarsi Dass Northen Institute of Technology, which was transferred to them vide letter dated 05.01.2011. It was pleaded by them that the entire sale consideration was Rs.40.00 lacs, which was paid by them to the opposite party No.4 by way of pay order drawn on Oriental Bank of Commerce and in lieu thereof, the opposite party No.4 transferred the allotment in their favour and also handed over its possession to them. The opposite parties No.2 and 3 also claimed having proprietary rights and possession. However, it was pleaded by them that the opposite party No.4 did not execute the sale-deed in their favour due to certain dispute with the Nazul Department and the Lucknow Development Authority. When the in the month of June, 2014, the petitioner went to the flat and asked for the possession, the opposite parties No.2 and 3 claimed themselves to be owner in possession. It was further pleaded by them that on 26.08.2014, the petitioner tried to dispossess them from the flat and, therefore, necessity for filing an injunction suit arose. The petitioner appeared in the aforesaid suit and filed a copy of the certificate dated 11.12.2014 and it was categorically stated that draft dated 19.01.2011 amounting to Rs.40.00 lacs was issued to the opposite party No.4. In the meantime, the opposite parties No.2 and 3 took possession of the flat. The petitioner then obtained relevant papers. According to the petitioner, the opposite party No.4 after receiving the entire sale consideration of Rs.40.00 lacs from the petitioner, dishonestly handed over the possession of the flat to the opposite parties No.2 and 3. A report was also lodged by the petitioner against the opposite parties No.2 and 3 at Police Station Hazratganj, Lucknow. The police after investigation submitted charge-sheet against one Mr. Alok Gupta, who is the Director of the opposite party No.4. Since, the petitioner was deprived of his possession, he also filed a suit for possession and recovery of damages against the opposite parties No.2 to 4 being Regular Suit No.239 of 2015, which is still pending. During pendency of the aforesaid case, the opposite parties No.2 and 3 filed an application for amendment, in which, they for the first time, stated that on 22.12.2010, an unregistered agreement was executed between the petitioner and the opposite parties No.2 and 3. They also tried to add the relief of mandatory injunction on the basis of unregistered agreement, which was barred by law and amounted to completely change the nature of the suit. The petitioner filed objections against the amendment application, but the same was allowed by the impugned order.;