- (1.) THIS civil review application has been filed for reviewing the order dated 16.2.2006 passed in W. P. (C) No. 3695 of 2005, whereby the order of the trial court dated 23.6.2005 rejecting the application for amendment of the written statement filed on behalf of the writ petitioners -Gopal Prasad and Narayan Prasad (defendant -opposites parties no. 1 and 2 respectively) was set aside.
(2.) MR . Amar Kumar Sinha, learned counsel appearing for the review petitioners, submitted that the said writ petition was filed against dead persons. He submitted that respondent no. 1 in the writ petition -Lakshmi Prasad died in 2001 and his heirs were substituted. Similarly, respondent no. 2 in the writ petition -Rameshwar Lal Gupta also died in 2003 and his heirs were also substituted, but without making their heirs as parties the said writ petition was filed and it was disposed of by the order under review. On merits he submitted that as the amendment sought for was absolutely inconsistent with the plea taken in the original written statement, the same was rightly rejected by the learned court below and such order required no interference by this Court in the said writ petition. Mr. P.K. Prasad, learned senior counsel appearing for the writ petitioners -opposite parties no. 1 & 2 herein, on the other hand, submitted that by mistake dead persons were made parties in the writ petition; but one of the sons of Rameshwar Lal Gupta, namely, Kanhaiya Lal Gupta, appeared in the said writ petition and filed counter affidavit; and after hearing his counsel, the order under review was passed. Against the said order under review, Kanhaiya Lal Gupta filed Special Leave Petition before the Supreme Court which he withdrew on 3.4.2006 and the following order was passed: " Upon hearing counsel the Court made the following ORDER Permission to file SLP is granted. Learned counsel for the petition wants to withdraw this application stating that by the time the order of the High Court was passed, Rameshwar Lal Gupta, the original defendant No. 2 already died and without his legal heirs being brought on record, the matter was disposed of by the High Court. The special leave petition is dismissed as withdrawn." He further submitted that this is a case of amendment in the written statement but the plaintiffs have not objected such amendment. He further pointed out that Mr. Manoj Kumar Sah, Advocate, appeared and was heard on behalf of the heirs of Lakshmi Prasad in the said writ petition. He further submitted that as Kanhaiya Lal Gupta did not succeed in the Supreme Court, he has set up the review petitioners who are other heirs of Late Rameshwar Lal Gupta. On merits of amendment he submitted that only from the power of attorney, it was learnt that there was partition between Annu Sao and Mathura Sao and, therefore, amendment of the written statement was necessary. He lastly submitted that no grounds have been made out for reviewing the order in question.
(3.) IT is true that the writ petition was filed against the dead persons and without making their heirs as parties. However, as noticed above, the heirs of such dead persons i.e. respondent no. 1 - Lakshmi Prasad and one of the sons of Late Rameshwar Lal Gupta, namely, Kanhaiya Lal Gupta, appeared and were heard before disposing of the writ petition. Thus, no prejudice has been caused to the heirs of the said dead persons. Moreover, in this review petition, I heard the parties on merits and find that the prayer for amendment of the written statement should not have been rejected. It may be noticed here that though the heirs of Laxmi Prasad -opposite parties no. 3 to 9 herein, appeared in this review petition through their counsel, but no body appeared on their behalf. It also appears that Kanhaiya Lal Gupta went to the Supreme Court against the order under review but he withdrew the special leave petition. Now his brother and sisters i.e., the other heirs of Late Rameshwar Lal Gupta have filed this review petition. Further in view of the amendment of the written statement, parties to the suit are at liberty to file further pleadings and adduce further evidence.;