# Jai Prakash Singh & Ors v. Additional District Judge Raebareli & Ors

- **Citation:** (2015) 2 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-02
- **Case number:** Misc. Single No. 2159 of 2007
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-singh-ors-v-additional-district-judge-raebareli-ors-43196
- **Pages:** 5

## Headnote

C.P.C-Order VI Rule 17- Amendment of
plaint-suit for declaration and possessionclaiming right of inheritance-after remand
in Second Appeal-by virtue of amendmentputting
claim
based
upon
adverse
possession-held-when not taken this plea
at earliest possible-after evidence-can not
be allowed-order passed by First Appellate
court-set-a-side.
Held: Para-20
Having examined the instant matter in
the
light
of
the
aforesaid
legal
proposition,
it
comes
out
that
respondents no. 2 and 3 filed a suit
claiming title by succession and sought a
declaration in this regard. As averred
above, earlier the matter went up to the
second appeal stage and was sent back
to the first appellate court for deciding
the appeal afresh. It may be noted that
the suit of respondent no. 2 had been
dismissed by the trial court. When the
matter
was
remanded,
the
private
respondents no. 2 and 3 filed an
application, seeking amendment in the
suit
by
taking
a
plea
of
adverse
possession on the basis of observation
made by this Court in the second appeal.
In my opinion, the learned Additional
District Judge, Court No. 1, Raebareli
committed an error in allowing the said
amendment, overlooking the fact that it
had changed the very nature of the suit
by claiming title on the basis of adverse
possession and abandoning the earlier
plea of title by succession.
Case Law discussed:
AIR 1985 SC 817; AIR 1992 SC 1604; JT 1998
(4) SC 484; [2002 (20) LCD 192]; AIR 2005
812
 INDIAN LAW REPORTS ALLAHABAD SERIES
SCW 3827; [2006 (100) RD 522]; AIR 1922
Privy Council 249; (2007) 5 SCC 602; [2002
(20) LCD 192]; (2007) 5 SCC 602; (2008) 7
SCC 85; (2009) 10 SCC 84.

## Text

2 All] Jai Prakash Singh & Ors. Vs. Additional District Judge Raebareli & Ors.
811
applications and reports lodged against
the petitioner. The mere fact that some
reports had been lodged against the
petitioner could not form basis of
cancelling the licence. The order passed
by the District Magistrate and that passed
by the Commissioner cannot, therefore,
be upheld on the basis of anything
contained in Section 17(3) of the Act.
14.

Having
considered
the
submissions made by the learned counsel
for the parties and the case laws, referred
to above, I am of the view that the
Appellate Court has committed an error in
not considering the facts in its correct
prospective and has also failed to
appreciate the grounds mentioned in
Section 17(3) of the Arms Act regarding
revocation or for suspending a licence. In
the backdrop of the aforesaid facts, the
order passed by the Appellate Authority
cannot be legally sustained.
15. For the reasons stated hereinabove, the writ petition is allowed and the
order dated 07.01.2010 passed by the
Commissioner as also the order dated
26.06.2009
passed
by
the
District
Magistrate, Raebareli are hereby set aside.
The District Magistrate shall pass a fresh
order after taking into account all relevant
aspects and the prescription provided
under Section 17 of the Arms Act.
16. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.07.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
Misc. Single No. 2159 of 2007
Jai Prakash Singh & Ors. ...Petitioner
Versus
Additional
District Judge Raebareli &
Ors.
...Respondents
Counsel for the Petitioner:
Rajendra Singh Chauhan
Counsel for the Respondents:
C.S.C., Mohammad Adil Khan
C.P.C-Order VI Rule 17- Amendment of
plaint-suit for declaration and possessionclaiming right of inheritance-after remand
in Second Appeal-by virtue of amendmentputting
claim
based
upon
adverse
possession-held-when not taken this plea
at earliest possible-after evidence-can not
be allowed-order passed by First Appellate
court-set-a-side.
Held: Para-20
Having examined the instant matter in
the
light
of
the
aforesaid
legal
proposition,
it
comes
out
that
respondents no. 2 and 3 filed a suit
claiming title by succession and sought a
declaration in this regard. As averred
above, earlier the matter went up to the
second appeal stage and was sent back
to the first appellate court for deciding
the appeal afresh. It may be noted that
the suit of respondent no. 2 had been
dismissed by the trial court. When the
matter
was
remanded,
the
private
respondents no. 2 and 3 filed an
application, seeking amendment in the
suit
by
taking
a
plea
of
adverse
possession on the basis of observation
made by this Court in the second appeal.
In my opinion, the learned Additional
District Judge, Court No. 1, Raebareli
committed an error in allowing the said
amendment, overlooking the fact that it
had changed the very nature of the suit
by claiming title on the basis of adverse
possession and abandoning the earlier
plea of title by succession.
Case Law discussed:
AIR 1985 SC 817; AIR 1992 SC 1604; JT 1998
(4) SC 484; [2002 (20) LCD 192]; AIR 2005
812
 INDIAN LAW REPORTS ALLAHABAD SERIES
SCW 3827; [2006 (100) RD 522]; AIR 1922
Privy Council 249; (2007) 5 SCC 602; [2002
(20) LCD 192]; (2007) 5 SCC 602; (2008) 7
SCC 85; (2009) 10 SCC 84.
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1. At the very outset, it is relevant to
mention that during the pendency of this
writ petition, petitioner no. 1 (Jai Prakash
Singh) died and as such his legal heirs,
namely, Harish Kumar Singh (son) and
Smt. Ram Dulari (wife) have been
substituted in his place as petitioner nos.
1/1 and 1/2.
2. By means of present writ petition,
petitioners have challenged the order
dated 24.03.2007 passed by Additional
District Judge, Court No. 1, Raebareli
(opposite party no. 1) in Appeal No.
36/80; Jagdamba Singh & another Vs.
Jung Bahadur Singh and another, whereby
the opposite party no. 1 has allowed the
amendment application moved by the
opposite party nos. 2 and 3.
3.
Brief facts of the case are that
opposite party no. 2 and 3 filed a suit for
declaration and possession, on the basis of
successions, before the IVth Additional
Munsif
Magistrate,
Raebareli.
After
considering the facts and hearing both the
parties,
the
Munsif
Magistrate
had
dismissed the suit for declaration and
possession preferred by opposite party nos.
2 and 3 on 29.01.1980 inter alia on the
ground that it is not proved that Lalla Singh
could legally inherit the rights of Smt.
Umrai. It was also held by the trial court
that the plaintiffs have claimed their rights
only on the ground of inheritance and not
on the ground of adverse possession. It was
also held that the plaintiffs cannot be
declared to be owner of the disputed land.
4. Against the aforesaid judgment
and order passed by the trial court, the
opposite party nos. 2 and 3 preferred an
appeal, which was allowed by opposite
party no. 1 on the ground that due to long
standing possession, the plaintiffs have
perfected their right by prescription. It
was further held by the learned Additional
District Judge/opposite party no. 1 that
even if, the plea of adverse possession
was not taken, it does not prevent the
court from declaring that the appellant
have perfected their rights by adverse
possession.
5. Feeling aggrieved by the judgment
of first appellate court, the father of
petitioners had preferred a Second Appeal
before the High Court and the High Court
after hearing both the parties, has set aside
the judgment and decree passed by first
appellate court on 22.12.2004 and remitted
the matter to first appellate court to decide
the matter afresh after giving opportunity of
hearing to the parties. After passing of
judgment dated 20.12.2004, the opposite
party no. 2 and 3 filed an application in the
suit under Order VI Rule 17 C.P.C. for
amending the plaint and sought a plea of
adverse
possession.
Against
the
said
amendment application, the petitioners had
filed an objection before the opposite party
no. 1 stating therein that there is inordinate
delay of several long years and through
amendment they want to fill the lacunae,
which is not permissible as it will change the
basic nature. It has further been stated in the
objection that two different statement cannot
run concurrently in the pleadings relating to
successions and adverse possession, as such
the amendment application is liable to be
rejected.
6. Learned counsel for the petitioners
has contended that the Court below, without
2 All] Jai Prakash Singh & Ors. Vs. Additional District Judge Raebareli & Ors.
813
considering the facts and legal aspects of the
case, allowed the amendment application in
arbitrary
manner
vide
order
dated
24.03.2007. It is well settled law that any
amendment under Order 6 Rule 17 be made
at an earliest stage. The appellate court ought
to have decided the appeal on the basis of
pleadings and evidence on record, but in the
instant case the appellate court provided to
raise new plea not originally pleaded by way
of amendment in an arbitrary manner. Two
different pleadings one of succession and
another is of adverse possession cannot run
concurrently, therefore the opposite party no.
1 has committed manifest error of law in
allowing the amendment application, which
changed the nature of original suit.
7. Learned Counsel for the contesting
respondent,
while
opposing
the
writ
petition, has submitted that Additional
District Judge, Court No. 1, Raebareli
(opposite party no. 1) on a consideration of
the entire facts and law applicable thereto,
allowed the application for amendment vide
order dated 24.03.2007 on payment of Rs.
500/- as cost. It has been submitted that
after the order dated 24.03.2007, the
amendment in the plaint had already been
incorporated by the answering opposite
parties and the cost has already been
deposited in Court but the petitioners have
declined to receive the cost. The court
below on a consideration of the entire facts
and circumstances of the case as well as the
law laid down by the Apex Court and this
Court, wherein it has been propounded that
rule of procedure are hand made and should
not be allowed to be mistress of justice and
further merits and demerits of the case shall
not be considered while allowing the
application for amendment, hence the
amendment can be allowed at any stage of
the proceedings, if it does not change the
nature of the suit.
8. In order to decide the lis involved
in this petition, it would be proper to refer
the legal proposition laid down in various
case laws on the subject.
9.
In Vineet Kumar v. Mangal Sain
Wadhera; AIR 1985 SC 817, the Hon'ble
Supreme
Court
held
that
normally
amendment is not allowed if it changes the
cause of action, but where the amendment
does not constitute the addition of a new
cause of action, or raises a new case, but
amounts to not more than adding to the facts
already on record, the amendment should be
allowed even after the statutory period of
limitation.
10. In Jagdish vs. Nathu Singh; AIR
1992 SC 1604 the Hon'ble Apex Court
with regard to amendment in plaint held
as under:
"12. ....the Court may allow to certain
extent even the conversion of the nature of
the suit, provided it does not give rise to
entirely a new cause of action. An
amendment sought in a plaint filed for
specific performance may be allowed to be
done without abandoning the said relief
about amendment seeking for damages for
breach of contract may be permitted."
11. In the case of Shallendr Amar
Singh v. Harnam Singh Cornalius decided
on 04.12.1996, this Court observed that
dispossession and adverse possession are
two different concepts, which are not
mutual to each other.
12. In G. Nagamma and others v.
Siromanamma and another; JT 1998 (4)
SC 484, the Hon'ble Apex Court held that
in an application under Order VI, Rule 17,
even an alternative relief can be sought,
however, it should not change the cause
814
 INDIAN LAW REPORTS ALLAHABAD SERIES
of action or materially affect the relief
claimed earlier.
13. In Ramroop v. the Deputy
Director of Consolidation, Varanasi and
others; [2002 (20) LCD 192], this Court
observed as under:
"6. It is well settled in law that a new
case based upon the facts, which were
available to the plaintiff at the time of filing
of original plaint but were not pleaded in the
original plaint, cannot be permitted to be set
up by way of amendment. A reference in this
regard may be made to the decisions in
Basanti Dei v. Vijaya Krushna Patnaik and
others, reported in AIR 1976 Orissa 218,
Fakir
Charan Mohanty v. Krutibaskar,
reported in AIR 1984 NOC 284 and Full
Bench decision of Madhya Pradesh High
Court in Lazarus Chhindwara v. Smt. Lavina
Lazarus, Indore and others, reported in AIR
1979 MP 70 (FB) and also a decision of this
Court in Gayatri Devi v. Om Prakash
Gautam and others, reported in AIR 1985
Alld. 356."
14. In Salem Advocate Bar
Association v. Union of India; AIR 2005
SCW 3827, the Apex Court has held that
if the nature of the suit is going to be
changed and it has not been proved on the
basis of pleadings that the plaintiff was
not
aware
regarding
the
fact
or
development which was to be amended by
amendment application, the amendment is
not permissible.
15. In Rama Shanker Keshari @
Patili Vs. Ist Additional District Judge,
Sonebhadra and others; [2006 (100) RD
522], this Court observed as under:
"9. The decision of the Trial Court is
correct. The defendants cannot be allowed
to change completely the case made in
paragraphs 25 and 26 of the written
statement and substitute an
entirely
different and new case."
16. Nevertheless, one distinct cause
of action cannot be substituted for another
nor the subject matter of the suit can be
changed by means of an amendment. The
following passage from the decision of
the Privy Council in Ma Shwe Mya v.
Maung Mo Hnaung, AIR 1922 Privy
Council 249, succinctly summarises the
principle which may be kept in mind
while dealing with the prayer for
amendment of the pleadings:
"All rules of Court are nothing but
provisions intended to secure the proper
administration of justice and it is therefore,
essential that they should be made to serve and
be subordinate to that purpose, so that full
powers of amendment must be enjoyed and
should always be liberally exercised, but
nonetheless no power has yet been given to
enable one distinct cause of action to be
substituted for another, nor to change, by means
of amendment, the subject matter of the suit."
17. In view of the above, the case
laws relied upon by the respondents are of
no avail. Even in the case of Usha
Balashaheb Swami and others v. Kiran
Appaso Swami and others, (2007) 5 SCC
602, the Apex Court observed that the
proviso to Order 6 Rule 17 of the Code,
however, provides that no application for
amendment shall be allowed after the trial
has commenced unless the court comes to
a conclusion that in spite of due diligence,
the party could not have raised the matter
before the commencement of trial.
18. In view of Order VI Rule 17 of
the
Code
of
Civil
Procedure,
no
2 All] Shaheen Parveen & Anr. Vs. The State of U.P. & Ors.
815
application for amendment shall be allowed
after the trial has commenced unless the
court comes to conclusion that in spite of due
diligence the party could not have raised the
matter before the commencement of the trial.
Moreover, there is no explanation in the
application for amendment as to why it could
not be brought on record at the first instance
and why there was such a long delay. In the
circumstances narrated above, the case laws
relied upon by the respondents are of no help
to them.
19.
In veiw of the legal proposition
enunciated in Ram Roop Vs. The Deputy
Director
of
Consolidation
[2002(20)
LCD192], Usha Balashaheb Swami and
others vs. Kiran Appaso Swami and others
(2007)5 SCC 602 and Gautam Sarup vs.
Leela Jetly and others (2008)7 SCC 85,
Revajeetu Builders and Developers vs.
Narayanaswamay and sons and others
(2009)10 SCC 84, it is imminently clear that
the facts, which were within the knowledge
of the plaintiff at the time of filing of original
plaint but were not pleaded in the original
plaint, cannot be permitted to be set up by
way of amendment.
20.
Having examined the instant
matter in the light of the aforesaid legal
proposition, it comes out that respondents no.
2 and 3 filed a suit claiming title by
succession and sought a declaration in this
regard. As averred above, earlier the matter
went up to the second appeal stage and was
sent back to the first appellate court for
deciding the appeal afresh. It may be noted
that the suit of respondent no. 2 had been
dismissed by the trial court. When the matter
was remanded, the private respondents no. 2
and
3
filed
an
application,
seeking
amendment in the suit by taking a plea of
adverse
possession
on
the
basis
of
observation made by this Court in the second
appeal. In my opinion, the learned Additional
District Judge, Court No. 1, Raebareli
committed an error in allowing the said
amendment, overlooking the fact that it had
changed the very nature of the suit by
claiming title on the basis of adverse
possession and abandoning the earlier plea of
title by succession.
21. For the reasons aforesaid, the
writ petition is allowed and the impugned
order
dated
24.03.2007
passed
by
Additional District Judge, Court No. 1,
Raebareli (opposite party no. 1) in Appeal
No. 36/80; Jagdamba Singh & another Vs.
Jung Bahadur Singh and another, is
hereby set aside. As the parties are
litigating since the year 1976 when the
regular suit was filed, the lower court is
directed to make an earnest endeavour to
conclude the proceedings by 31.12.2015.
The trial court is further directed not to
grant any adjournment at the drop of hat
and only genuine and in exceptional
circumstances, adjournment should be
permitted so that precious time of the
Court is not wasted and long pending
litigation comes to an end.
22. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ASHOK PAL SINGH, J.
Misc. Bench No. 3519 of 2015
Shaheen Parveen & Anr. ...Petitioners
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Omkar Singh