# Neelam Yadav v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** Misc. Bench No. 11051 of 2021
- **Bench:** Rajan Roy, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-yadav-v-state-of-u-p-ors-47191
- **Pages:** 8

## Headnote

C.S.C., Atul Kumar Dwivedi, Rohit Tripathi

Election
result
declared-Petitioner
submitted
an
application
before
A.R.O./R.O. - non application of mind by
the
officer-discretionary
jurisdiction
under Article 226 cannot be interferedas it has effect of compromising the
fairness and sanctity of election process.

W.P. dismissed. (E-7)

List of Cases cited:

## Text

340 INDIAN LAW REPORTS ALLAHABAD SERIES
protectee in the Central list in Delhi as
there was no specific input regarding threat
perception to him, either from any terrorist,
militant, outfit or fundamentalist groups.

32. This Court, while exercising writ
jurisdiction under Article 226 of the
Constitution of India, cannot substitute its
decision to the decision of the competent
Authority in respect of threat perception of
the petitioner to his life and property. From
the facts as emanate from the record, it is
evident that the petitioner does not face any
real threat to his life or property. He has
been asking for security as authority of
symbol to flaunt his status a VIP. This
practice, creating a privileged class on State
expense and taxpayers money, is to be
deprecated. It is, therefore, provided that
the threat perception has to be real and the
Security Committee has to assess the threat
perception, taking into consideration the
reports
from
Intelligence
Unit,
the
concerned police station and past record of
the applicant. The security should be
provided only to those who face real threat
to their life for having done some work in
the interest of the society or the nation from
terrorist/naxalite or organized gangs and
not otherwise. A personal enmity with
other
would
not
come
within
the
parameters
for
assessing
the
threat
perception of the applicant for providing
him security.

33. In view of the aforesaid
discussions, we find that the present writ
petition lacks merit. It is dismissed
accordingly. Interim order, if any, stands
vacated.

34. Let a copy of this judgment be
sent to the Chief Secretary of the
Government of Uttar Pradesh, Principal
Secretary/Additional
Chief
Secretary,
Department of Home, State of Uttar
Pradesh and Director General of Police,
Uttar Pradesh for its compliance and taking
decision,
accordingly,
for
providing
security to an individual.
----------

(2021)08ILR A340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.08.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 11051 of 2021

Neelam Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shobhit Mohan Shukla

Counsel for the Respondents:
C.S.C., Atul Kumar Dwivedi, Rohit Tripathi

Election
result
declared-Petitioner
submitted
an
application
before
A.R.O./R.O. - non application of mind by
the
officer-discretionary
jurisdiction
under Article 226 cannot be interferedas it has effect of compromising the
fairness and sanctity of election process.

W.P. dismissed. (E-7)

List of Cases cited:

1. Smt. Ram Kanti Vs D.M., Hamirpur & ors,
1995 (2) U.P.L.B.E.C. 771

2. Sunita Patel Vs St. of U.P. & ors. (Civil Misc.
Writ Petition No. 29629 of 2000),2006(1)
U.P.L.B.E.C. 372

3. Pancham & ors. Vs St. of U.P. & ors, Writ
Petition No. 5562 (MB) of 2005
8 All. Neelam Yadav Vs. State of U.P. & Ors.
341
4.Ram Achal Vs St. of U.P. & ors, Writ-C No.
12685 of 2021

5. Smt. Tara Devi Vs St. of U.P. & ors.,2011 (1)
ADJ 287

6. St.of Mah. & ors. v, Prabhu, (1994) 2 SCC 481

7. A.M. Allison & H.B. Brig Vs B.L. Sen & ors.,
AIR 1957 SC 227

8. Gadde Venkateshwara Rao Vs Govt. of A.P. &
ors, AIR 1966 SC 828

9. M.C. Mehta Vs U.O.I. & ors., (1999) 6 SCC
237

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Saurabh Lavania, J.)

1. By means of this writ petition the
petitioner has challenged a decision/letter
dated 06.05.2021 issued by the opposite
party no. 2, i.e., the State Election
Commission and another order dated
08.05.2021 issued by the District Election
Officer/District Magistrate, Amethi.

2. The facts of the case, in brief, are
that the petitioner contested the election for
Member, Zila Panchayat for Ward No. 28,
Amethi. The opposite party no. 6 herein
also contested for the same office. The
elections were held, votes were counted
and as per the result, the petitioner had
secured 3149 votes, whereas the opposite
party no. 6 had secured only 3046 votes,
therefore, a certificate of election was
issued to the petitioner on 04.05.2021. On
04.05.2021 itself, before the petitioner
could take oath, the opposite party no. 6
submitted a representation to the Assistant
Returning Officer, copy of which is
annexed as Annexure No. CA-3 to the
counter affidavit of opposite party no. 6
stating that two booths bearing number 79
and 80 which were part of ward no. 28 and
in which voting had taken place and the
votes polled therein which had been
counted were not included in Form-50
while calculating the number of votes
polled by the respective candidates. It is
said that at that time the opposite party no.
6 was not aware that the same error had
been committed in respect to the votes
polled and counted at booth nos. 120, 121,
134, 138 and 150 which were also part of
ward no. 28 and that the votes polled and
counted in respect to these booths were
erroneously
included
in
Form-50
of
adjoining ward no. 29 of which they were
not a part. Likewise Booth no. 100 which
was part of ward no. 29, the votes polled
and counted in respect thereof were
included in Form no. 50 pertaining to ward
no. 28, i.e., the ward of rival private parties
herein. The Assistant Returning officer
rejected the said application of the opposite
party no. 6.

3. We have perused the order of the
Assistant Returning Officer passed on the
application of the petitioner. On a bare
reading, it is apparent that the A.R.O./R.O.,
Amethi misread the application of the
petitioner as if he was complaining about
inclusion of Booth nos. 79 and 80 in ward
no. 28 which in fact were part of ward no.
29, whereas, in fact, the opposite party no.
6 had submitted just the opposite in his
application. After misreading it he opined
that ward nos. 79 and 80 were part of ward
no. 29 and that is how counting had been
done, which was factually incorrect.

4. Being aggrieved the opposite party
no. 6 approached the opposite party no. 2,
i.e., the State Election Commission, which,
on 06.05.2021, passed an order, a copy of
which is also annexed as part of Annexure
CA-4 to the counter affidavit of opposite
342 INDIAN LAW REPORTS ALLAHABAD SERIES
party no. 6, by which, the Election
Commission
ordered
the
District
Magistrate/District
Returning
Officer
(Panchayat and Nagariya Nikay), Amethi,
to get the facts inquired and to take action
in accordance with Rules. Thereafter the
matter was got inquired and as is evident
from Annexure-1, which is an order passed
by the District Returning Officer, Zilla
Panchayat, Amethi, dated 8 May 2021, it
was found that in fact ward nos. 79, 80,
120, 121, 134, 138 and 150 were part of
ward no. 28 for which the petitioner and
opposite party no. 6 had contested for the
office of Member Zila Panchayat, but,
erroneously, the votes polled and counted
in respect of these booths were not entered
in Form-50 pertaining to ward no. 28,
instead, they were included in Form-50
pertaining to ward no. 29, in which they did
not fall. Likewise the votes pertaining to
Booth number 100 were counted for ward
no. 28, though, the said booth fell in ward
no. 29. After inclusion of the votes cast at
aforesaid omitted booths to the votes
pertaining to ward no. 28 it was found that
the petitioner Neelam Yadav had polled
3329 votes, whereas, the opposite party no.
6, Smt. Krishna Devi had polled 3557
votes. There was a difference of 2367 in the
valid votes as considered earlier and the
one
which
were
actually
polled.
Accordingly, based on this exercise,
modified result of election was declared
and Form-50 was also modified on the
same terms. The opposite party no. 6 was
declared elected. The certificate of election
issued to the petitioner erroneously, was
cancelled. It is an admitted fact that the
opposite party no. 6 has taken oath as a
consequence thereof.

5. Contention of the learned counsel
for the petitioner was that once the result
had been declared on 4.5.2021 the
returning officer became functus officio,
therefore, he could not have cancelled the
certificate of election issued in favour of
the petitioner nor could he have issued it in
favour of the opposite party no. 6. He could
not have recalled, reviewed or cancelled the
certificate of election already issued, that
too, without any opportunity of hearing. In
this regard he relied upon various decisions
rendered by coordinate benches of this
Court reported in 1995 (2) U.P.L.B.E.C.
771,
Smt.
Ram
Kanti
v.
District
Magistrate, Hamirpur & ors.; 2006(1)
U.P.L.B.E.C. 372, Sunita Patel v. State of
U.P. & ors. (Civil Misc. Writ Petition No.
29629 of 2000); other decisions rendered in
Writ Petition No. 5562 (MB) of 2005,
Pancham & ors. V. State of U.P. & ors.;
Writ-C No. 12685 of 2021, Ram Achal v.
State of U.P. & ors., wherein, it has been
held that once the result of election is
declared, then, the returning officer and the
Election
Commission
become
functus
officio and cease to have jurisdiction over
the elections. They cannot cancel the
declaration of result or direct fresh poll and
it is the Election Tribunal alone which is
competent to deal with the dispute arising
out of or in connection with the election.
The election commences from the initial
notification
and
culminates
in
the
declaration of a return of a candidate.
Election process, thus, comes to an end on
the final declaration of returned candidates.
Learned counsel also relied upon Article
243-O of the Constitution of India in
support of his contention.

6. Learned counsel for the petitioner
placed heavy reliance upon a document
annexed as Annexure S.A.-2 with its
affidavit dated 05.05.2021 by the Election
Commission to contend that the election
process was over and the same was
denotified on 6.5.2021 as per the Election
8 All. Neelam Yadav Vs. State of U.P. & Ors.
343
Commission
itself,
therefore,
the
cancellation of the certificate of election
issued to the petitioner on 8.5.2021 is
erroneous in law and without jurisdiction.

7. On the other hand Dr. L.P. Mishra,
learned counsel for the opposite party no. 6
contended that the election at hand is a 3tier election involving election to the Gram
Panchayat, Kshetra Panchayat and Zila
Panchayat,
therefore,
the
process
of
election does not come to an end till the
elections to the office of the Chairman, Zila
Parishad are held. He submitted that on
4.5.2021 when the result was erroneously
declared without taking into consideration
the votes poled on booth no. 79, 80, 120,
121, 134, 138 and 150 which fell in Ward
No. 28, the opposite party no. 6 submitted
an application to the A.R.O./R.O., but he
misread the application and passed an
absurd order. Had the A.R.O./R.O. applied
his mind to the facts of the case, this
situation would not have arisen. He
submitted that sanctity of elections is to be
maintained and all endeavour should be
made to ensure free and fair election.
Nobody should get elected by default or
merely because the concerned official
committed an error. It would be a death
knell for democracy, if this is permitted. He
submitted that the votes were not only
polled on the aforesaid booths, but, were
also counted. The error occurred in not
including these votes in Form-50 which is
the final Form prepared containing the
result of elections and is referable to
Schedule-12. He relied upon a Division
Bench judgment of this Court reported in
2011 (1) ADJ 287, Smt. Tara Devi v. State
of U.P. & ors., wherein, the earlier
decisions which have been relied by the
petitioner's counsel , have been considered
and according to him it has been held that
formal declaration of result under Rule 54
will abide by Rule 56 of the Rules 1994. In
other words, when declaration of result
under Rule 54 is formal one, declaration of
result is subject to Rule 56 which is final
one. It has been held that it is an admitted
position
that
election
starts
with
notification
and
finishes
with
denotification. Scope of election petition
arises thereafter, but , during this period
Election Commission is the final authority
at the entire process. Therefore, after
formal declaration of result by the returning
officer, if he is called upon by the other
authorities under Rule 56 to remove the
defects which are either minor or formal or
inadvertent and he removes the same,
neither he can be said to have become
functus officio nor can it be said to be
outside the scope and jurisdiction of the
Election Commission or any authority
thereof.

8. Dr. Mishra further submitted that
even otherwise the error is apparent on the
face of the record and there is no denial of
it. In this context he invited attention of the
Court to para-15 of counter affidavit of
opposite party no. 6, wherein, a specific
averment has been made about the fact that
certain
booths,
already
referred
hereinabove, were part of Ward-28 and not
Ward-29, but, the votes pertaining to said
booths
were
counted
in
Ward-29
erroneously. The polling booth lists relating
to election of Member of Zila Panchayat of
Ward No. 28 and 29 have also been
annexed as Annexure C.A.6-A and C.A.6B. In this context he submitted that in the
index the said annexure had incorrectly
been mentioned as relating to Ward-29. He
submitted that these averments in para-15
have not been specifically denied in the
rejoinder affidavit. He invited our attention
to para-20 thereof. He further contended
that the error being unrebutted this court
344 INDIAN LAW REPORTS ALLAHABAD SERIES
would not, by interfering in the matter,
revive an illegality. The requirement of free
and fair election is paramount, therefore,
this Court should not interfere in the
matter.
He
also
submitted
that
the
impugned order has not affected the result
of election of members of Ward No. 29
which remains as it is.

9. Sri Rohit Tripathi, learned counsel
appearing for the Election Commission
submitted that the error had in fact occurred
which was apparent as was found in the
inquiry, therefore, the said error has been
rectified. The Election Commission is
bound to ensure free and fair election as
such this is not a matter where the Court
should interfere.

10. We specifically asked Sri Tripathi
as to whether there is any provision for
denotification of elections ? This question
was put by us to other counsels also, but
none of them could place before us any
provision in the Kshetriya Panchayat and
Zila Panchayat Adhiniyam 1961 or Rules
made thereunder regarding denotification
of elections. When we invited attention of
Sri Tripathi to the document annexed by
the Election Commission and relied by the
petitioner to contend that elections were
denotified on 06.05.2021, he contended
that there is no provision for denotification
and the said document was issued only for
the reason that as the voting having taken
place the Model Code of Conduct have
come to an end. He further submitted that
though the said order is not happily
worded, but, this was the intent of the
Election Commission.

11. We also asked Sri Tripathi as to
when was the result of the Election
declared in terms of Rule 54 of the U.P.
Kshetriya Panchayat and Zila Panchayat
(Election of Members) Rules 1994 and
when was the report of the result sent to the
Election Commission and received by it, he
submitted that he would have to seek
instructions. After seeking instructions he
came back and informed that no intimation
about the initial result in which the
petitioner
Smt.
Neelam
Yadav
was
declared elected, was ever provided by the
District Magistrate. Information about final
result in which the opposite party no. 6 was
declared elected was uploaded on the
Election
Commission's
website
on
09.05.2021 at 12:42 PM. He, however, also
submitted
that
the
District
Magistrates/Returning Officers on their
own upload the results on the website of
the Election Commission.

12. Sri Tripathi also relied upon
judgment of the Division Bench in Tara
Devi's case (supra). He referred to the
averments made in the counter affidavit of
the Election Commission to contend that
the Election Commission on receipt of a
representation from opposite party no. 6 on
06.05.2021 ordered an inquiry in the
matter, in response to which the District
Magistrate by means of his letter dated
06.05.2021 directed the A.D.M. (Finance &
Revenue)/Deputy Electoral Officer, Amethi
to conduct an inquiry and furnish a report.
In compliance of the said direction the
A.D.M. (Finance and Revenue) submitted
an inquiry report by means of letter dated
08.05.2021. In the said report it was
specifically mentioned that votes polled at
Poling Center 79, 80, 120, 121 (Part), 134
(Addl. Room No. 1), 138 (Room No. 1),
158 (Room No. 1) were left out in the final
tabulation for ward No. 28, therefore,
keeping in view the abovenoted mistake it
was decided that appropriate decision be
taken for the purpose of rectifying the
error, consequently an amended Form-50
8 All. Neelam Yadav Vs. State of U.P. & Ors.
345
was prepared and on the basis of same,
certificate issued in favour of petitioner
was cancelled, and fresh certificate was
issued in favour of opposite party no. 6
who had polled higher votes than the
petitioner. It was a bona fide decision in
order to ensure that the sanctity of the
electoral process is maintained in terms of
the tone and tenor of the constitutional
mandate of conducting free and fair
election. The error being apparent and it
having been rectified this Court should not
interfere in the matter under Article 226 of
the Constitution of India.

13. We have also been informed by
Sri Tripathi that proceedings have been
ordered against the A.R.O./R.O. who had
rejected the representation of the opposite
party no. 6 on 4.5.2021 on erroneous
grounds as it had the effect of adversely
affecting the sanctity of elections and its
result.

14. It is a case where votes cast and
counted in respect of Booth Nos. 120, 121,
134,138 and 150 which were part of Ward
No. 28, were not included in the final
tabulation of votes in Form 50 pertaining to
the
said
ward,
instead,
they
were
erroneously
mentioned
in
Form-50
pertaining to Ward No. 29. There is no
denial of this fact by the petitioners in the
pleadings. Likewise, votes polled and
counted in respect of Booth No. 100 of
Ward No. 29 were erroneously included in
Form-50 pertaining to Ward No. 28. It is
this error which has been rectified by the
impugned action. Based on this exercise the
opposite party no. 6 has been declared
elected and has taken oath and the
certificate of election issued earlier in
favour of the petitioner on the basis of
incorrect entries in the final tabulation chart
has been cancelled.

15. We confronted learned counsel for
the petitioner as to whether he had rebutted
the specific finding of fact in the impugned
order and specific assertion in para-15 of
the counter affidavit of opposite party no. 6
that the booths in question were part of
Ward No. 28, but, the votes polled and
counted in respect thereof were not
included in the final Form-50 pertaining to
Ward No. 28, which contains the final
result, instead, they were included in Form50 of Ward No. 29, the learned counsel
could not give any satisfactory reply. He
stated that he had not been given an
opportunity by the concerned official to put
his version. When we asked as to why he
has not availed the opportunity before this
Court as there is documentary proof
annexed as C.A.-6 to the counter affidavit
of opposite party no. 6 containing the list of
booths of the two wards, i.e., ward No. 28
and 29 corroborating the finding of fact in
the impugned order and the assertion of the
opposite party no. 6, he did not have any
reply. We have perused para-20 of the
rejoinder affidavit as also other paragraphs
therein and have also perused the contents
of the writ petition, but we did not find any
averment that the aforesaid facts as
mentioned in the impugned order or in the
counter affidavit of opposite party no. 6
were incorrect nor any proof to show that it
was so. The reply in para-20 of the
rejoinder affidavit merely contains a bald
denial and is apparently evasive.

16. The legal position, no doubt, is
that
ordinarily
there
would
be
no
interference in an election matter after an
election result has been declared, however,
we find that on 4.5.2021 itself the petitioner
had submitted an application before the
A.R.O./R.O. pointing out the error, but, the
said officer did not apply his mind to the
facts before him. Had he done so, this
346 INDIAN LAW REPORTS ALLAHABAD SERIES
situation would not have arisen. It is also
a question before us that should we
ignore an apparent illegality which has
not been rebutted by the petitioner in
spite of opportunity before us, and
thereby should we revive an illegality by
interfering with the order on the grounds
asserted by the petitioner's counsel. We
have to keep in mind that we are
exercising
equitable
discretionary
jurisdiction under Article 226 of the
Constitution of India and if a fact is
apparent and the impugned order has
done substantial justice in the matter by
rectifying the error, which is apparent
and remains unrebutted, then, the High
Court
under
Article
226
of
the
Constitution
of
India
would
not
interfere, as, in doing so it would revive
another
illegality.
We
are
of
the
considered opinion that purely on facts
we are not inclined to interfere with the
impugned order
as
it rectifies
an
apparent and unrebutted error. Secondly
because in doing so we would be
reviving an illegality, one which is far
more grave than the one being alleged
by the petitioner, as, it has the effect of
compromising the fairness and sanctity
of the election process. Had it been an
arguable and triable case based on the
averments made on behalf of the
petitioner and the arguments advanced,
then, we may have interfered in the
matter,
but,
when
the
facts
go
undisputed, then the result is irresistible
and it has to be in favour of substantial
justice which has been rendered by the
impugned order.

17. In taking this view we are
supported by the decision of Hon'ble the
Supreme Court reported in (1994) 2 SCC
481, State of Maharashtra & ors. v,
Prabhu, wherein while noticing the
distinction between writs issued as a
matter of right such as habeas corpus
and those issued in exercise of discretion
such as certiorari and mandamus it was
held that where the Government or any
authority passes an order which is
contrary to Rules or law, it becomes
amenable to correction by the Courts in
exercise of writ jurisdiction, but, one of
the principles inherent in it is that the
exercise of power should be for the sake
of justice. One of the yardstick for it is if
the quashing of the order results in
greater harm to the society, then the
Court may restrain from exercising the
power. Similar view has been taken in
other decisions of the Supreme Court,
such as, in the case of A.M. Allison and
H.B. Brig v. B.L. Sen & ors., AIR 1957
SC 227. It was a case where the order of
the Deputy Commissioner Sri Shiv Sagar
was alleged to be without jurisdiction,
yet the Supreme Court upheld the
decisioin of the High Court in declining
to exercise jurisdiction in the matter
under Article 226 of the Constitution of
India as substantial justice had been
done. We may also refer to the decision
reported in AIR 1966 SC 828, Gadde
Venkateshwara Rao v. Government of
Andhra Pradesh & ors.; wherein,
Hon'ble the Supreme Court affirmed the
decision of the High Court in refusing to
exercise its extraordinary discretionary
power in the circumstances of the case,
as, if the High Court had quashed the
said order, it would have restored an
illegal order. This decision has been
followed in M.C. Mehta v. Union of
India & ors., (1999) 6 SCC 237. We
accordingly decline to exercise our
extraordinary discretionary and equitable
jurisdiction in the matter and dismiss
this writ petition.
----------
8 All. Hamidullah & Ors. Vs. Laxmi Prasad & Ors.
347
(2021)08ILR A347
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 14479 of 2021

Hamidullah & Ors. ...Petitioners
Versus
Laxmi Prasad & Ors. ...Respondents

Counsel for the Petitioners:
Mohd. Mustafizul Haq, Deepti Gupta

Counsel for the Respondents:
-----

Joint Tenancy-ammendment application
by Plaintiff-one of the deceased died -
defendant jointly filed objection without
impleading
deceased's
legal
heirammendment
of
plaintiff
rejected-
objection filed is illegal--proceeding u/s
21(1)
(a)
could
not
continue-order
rejecting ammendment is inconsequential
and
non-maintainable-subsequent
substitution was entertained-such order is
bad in the eye of law. Impugned order and
consequential proceedings quashed.

W.P. disposed. (E-7)

Held, It may be relevant to note that the
consequence of abatement does not follow as a
result of death of the landlord or a tenant in the
proceedings instituted under the Rent Control
Act. Therefore, the overriding effect of the Act
by virtue of Section 38 to the extent of
inconsistency with CPC makes the application of
Section 34(4) of the Act as indispensable,
therefore,
bringing
on
record
the
legal
representatives or the legal heirs of the
deceased party for continuity of the proceeding
becomes a pre-requisite.(para 9)

List of Cases cited:

1. Ajeet Gupta Vs Smt. Mukteshwari Nigam &
ors., 1984 LCD pg. 68

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Q.M. Haque learned
counsel for the petitioners and Ms. Deepti
Gupta learned counsel for the opposite
parties.

2. This is a petition filed under Article
227 of the Constitution of India assailing
the order passed by the revisional court
below
on
19.3.2021
whereby
the
application i.e. 30Ka/2 for substitution of
the legal heirs of one of the respondents in
the revision who was defendant no. 6 in the
miscellaneous case filed under Section
21(1)(a) of the U.P. Act No. 13 of
1972(hereinafter referred to as the Act) has
been allowed under Order 22 Rule 4 C.P.C.

3. Facts in brief are that a Misc. Case
No.1/2016 for eviction of tenants under
Section 21(1)(a) of the Act was filed before
the court below impleading six defendants.
The defendant no. 1 was the original tenant
whereas the defendant nos. 2 to 6 were the
legal heirs of the deceased original joint
tenant Samiullah who was the real brother
of the defendant no. 1. The tenancy
originally was admittedly joint. Thus, all
the co-defendants were joint tenants of the
shop in dispute. A written statement jointly
filed on 5.2.2016 by all the defendants is
also on record. Thereafter, an application
for amendment i.e. Ka-3 was filed by the
plaintiffs. In response to this application,
all the defendants are stated to have filed
their objections jointly on 7.3.2018 as is
evident from paragraph 7 of the present
petition. The amendment application came
to be rejected by order dated 16.10.2018
which is contained as anneuxre 6 but at the