# Plaintiffs-Revisionist v. Smt. Tabassum and others

- **Citation:** (2012) 2 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-01
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiffs-revisionist-v-smt-tabassum-and-others-42295
- **Pages:** 5

## Headnote

C.P.C.-Section 115-Civil revision-against
application-proposed amendment-would
not change nature of suit or claim barred
by limitation-can not be rejected on
ground of prolong delay-amendment of
plaint can be made and allowed at any
stage.

Held: Para 14

A careful reading of entire amendment,
which
the
plaintiffs/revisionists
has
sought also does not show that it would
change
the
nature
of
the
suit
or
something which can be said to be
barred by limitation ex facie. The well
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
established principles for denying an
amendment I do not find exist in the
present case and learned Counsel for the
respondents
have
also
failed
to
demonstrate the same. The Court below
has therefore erred in law in rejecting
application
of
plaintiffs-revisionists
seeking amendment in the plaint.
Case law discussed"
AIR 2008 SC 2139; 2009 (11) SCC 308; 2009
(10) SCC 434; AIR 2005 SC 3353

## Text

2 All] Amit Garg and another V. Smt. Tabassum and others
519
Condonation of delay is an exception and
should not be used as an anticipated benefit
for government departments. The law
shelters everyone under the same light and
should not be swirled for the benefit of a
few. Considering the fact that there was no
proper
explanation
offered
by
the
Department
for
the
delay
except
mentioning of various dates, according to
us, the Department has miserably failed to
give any acceptable and cogent reasons
sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be
dismissed on the ground of delay."

8. Moreover, the enhanced amount as
awarded by the impugned judgment must
have been realised by the claimant
respondent long before. Supreme Court in
Stanes Higher Secondary School Vs.
SpecialTehsildar (L.A). A.I.R. 2010 SC
1323 has held that if the amount as
awarded by the reference court has been
withdrawn by the landowner then even if
High Court reduces the said amount, it
would be quite unjust to direct return of the
said amount (para 12). In this regard
reference may also be made to Fida
Husain Vs. M.D.A. A.I.R. 2011 S.C.
3001 (para 28)

9. In State of Punjab Vs. Harchal
Singh AIR 2006 SC 2122 the Court has
taken into consideration the "Laws Delay"
which may not be attributable to anyone in
the land acquisition matters. In the instant
case also the matter has become almost 20
years old since the date on which amount
was enhanced by the reference court.

10. Accordingly, I do not find any
merit, hence delay condonation application
is dismissed.

11. Office is directed to supply a
copy of this order free of cost to Sri Shrish
Chandra, learned standing counsel for
sending the same immediately to Secretary
and
Principal
Secretary
Irrigation
Department. In some future case it may be
enquired that what action was taken
pursuant to this order.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Revision No. - 182 of 2012

Amit Garg and another

 ...Plaintiffs-Revisionist
Versus
Smt. Tabassum and others

 ...Defendant-Respondents

Counsel for the Revisionists:
Sri Ajit Kumar
Sri Manu Saxena

Counsel for the Opposite Parties:
Sri Ajay K. Singh
Sri Ashish Kr. Singh
Sri Krishna Shukla
S.C.

C.P.C.-Section 115-Civil revision-against
application-proposed amendment-would
not change nature of suit or claim barred
by limitation-can not be rejected on
ground of prolong delay-amendment of
plaint can be made and allowed at any
stage.

Held: Para 14

A careful reading of entire amendment,
which
the
plaintiffs/revisionists
has
sought also does not show that it would
change
the
nature
of
the
suit
or
something which can be said to be
barred by limitation ex facie. The well
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
established principles for denying an
amendment I do not find exist in the
present case and learned Counsel for the
respondents
have
also
failed
to
demonstrate the same. The Court below
has therefore erred in law in rejecting
application
of
plaintiffs-revisionists
seeking amendment in the plaint.
Case law discussed"
AIR 2008 SC 2139; 2009 (11) SCC 308; 2009
(10) SCC 434; AIR 2005 SC 3353

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ajit Kumar, Advocate
assisted by Sri Manu Saxena, learned
counsels for the petitioners, Ari Ajay
Kumar Singh and Sri Ashish Kumar Singh,
learned counsels for contesting respondent
No.1 and Sri Krishna Shukla, who has put
in appearance on behalf of respondents
No.2 to 4 and learned Standing Counsel for
respondents No.5 & 6.

2. The petitioner's application
seeking
amendment/impleadment
in
original suit no.2004/2004 has been
rejected by Court below i.e. the Court of
Addl.
District
Judge,
Court
No.14,
Allahabad by order dated 23.3.2012 and
this revision has been preferred assailing
the said order. This case has come up
before this Court by nomination of Hon'ble
the Chief Justice by His Lordship's order
dated 19.4.2012.

3. The original suit, admittedly, has
been filed by the revisionists themselves
impleading the following:

^^1- Jherh rcLlqe iRuh Jh vkbZ0vgen]
fuokfluh] th0Vh0ch0 uxj djsyh] bykgkcknA

2- tkosn gSnj

3- ruohj gSnj

4- ukosn gSnj

iq=x.k lS;~;n 'kkSdr vCckl] fuoklh othjxat]
y[kuÅ] m0iz0A

5- vij ftykf/kdkjh utwy] bykgkcknA

6- ljdkj] m0iz0] ctfj;s dysDVj] bykgkcknA^

4. The relief sought by the
revisionists in the above suit are as under:

^^;g fd oknhx.k fuEufyf[kr vuqrks"k dh
;kpuk djrs gSa%&

v1⁄2 ;g fd tfj;s vkKfIr ?kks"k.kk dfFkr Qzh
gksYM MhM fnukad 29-3-2004 ftldks izfroknhx.k 2
yxk;r 4 ds ukfeus'ku ij izfrokfnuh ds gd esa vij
ftykf/kdkjh utwy] bykgkckn] ljdkj] mRrj izns'k
ctfj;s dysDVj] bykgkckn izfroknh la[;k 5 }kjk
fu"ikfnr fd;k x;k gS vkSj ftldh jftLV~jh fnukad
29-3-2004 dks iqLrd la[;k&1 [k.M la[;k 4419 ds
i`"B la[;k 127@160 ds dze la[;k 3956 dks lc
jftLVjkj lnj] bykgkckn ds ;gka gqbZ gS] dks 'kwU;
,oa {ks=kf/kdkjh ds ijs ?kksf"kr fd;k tkos vkSj mlds
?kks"k.kk dh lwpuk lc jftLVjkj lnj] bykgkckn dks
Hksth tkosA

c1⁄2 ;g fd okn O;; oknhx.k dks izfroknhx.k
ls fnyk;k tkosA

l1⁄2 ;g fd vU; nknjlh U;k;ky; dh jk; esa
tks mfpr gks cgd oknhx.k fo:) izfroknhx.k
fnyk;k tkosA**

5. For the purpose of considering
validity of impugned order though the
parties have sought to demonstrate that
there is chequered history but, in my view,
suffice it to mention that an amendment
sought in the plaint by plaintiffs can be
rejected on the well established principles
only.
Normal
principle
is
that
an
amendment can be made and allowed at
any stage unless the principles negativing
such amendment are applicable.
2 All] Amit Garg and another V. Smt. Tabassum and others
521

6. The law in respect to amendment of
pleadings is a bit liberal. The mere fact that
application for amendment has been filed
after a prolong delay would not justify its
rejection where neither it changes the
nature of the suit nor intends to add a claim
which is barred by limitation nor takes
away the claim of the other party nor
amounts to a fresh cause of action nor
otherwise prejudice the other side. Instead
of adding several authorities on this aspect,
I intend to refer to the decision of Apex
Court
in
North
Eastern
Railway
Administration,
Gorakhpur
Vs.
Bhagwan Das (D) by Lrs. AIR 2008 SC
2139 where the Court held:

"Insofar as the principles which
govern the question of granting or
disallowing amendments under Order 6
Rule 17 C.P.C. (as it stood at the relevant
time) are concerned, these are also well
settled. Order 6 Rule 17 C.P.C. postulates
amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil
v. Kalgonda Shidgonda Patil and Ors.
1957 (1) SCR 595 which still holds the
field, it was held that all amendments
ought to be allowed which satisfy the two
conditions: (a) of not working injustice to
the other side, and (b) of being necessary
for the purpose of determining the real
questions in controversy between the
parties. Amendments should be refused
only where the other party cannot be
placed in the same position as if the
pleading had been originally correct, but
the amendment would cause him an injury
which could not be compensated in costs.
[Also see: Gajanan Jaikishan Joshi v.
Prabhakar Mohanlal Kalwar (1990)1 SCC
166]"

7. This has been followed in
Peethani Suryanarayana and Anr. v.
Repaka Venkata Ramana Kishore and
Ors. 2009 (11) SCC 308. To the same
effect is the view taken in Sushil Kumar
Jain v. Manoj Kumar and Anr. 2009
(10) SCC 434.

8. The revisionists, who are also
plaintiffs, filed amendment application
stating that they have come across certain
act of fraud and misrepresentation and
collusion of the parties necessitating
amendment in the pleadings so as to bring
those factual pleadings on record. Also
since the plea of mala fide has been raised
against State Government officials, they
are to be impleaded eo nomini. The
amendment application is on record as
Annexure 10 to the writ petition.

9. Sri Ajit Kumar, learned counsel
for the revisionists submitted that the Court
below has tried to mislead itself by
referring to the orders of this Court
whereby directions have been issued for
expeditious disposal of suit and contended
that such direction would not negate rights
of the parties regarding amendment etc., if
otherwise they are within their rights for
making such request. He further contended
that Court below has misdirected itself by
referring to various proceedings here and
there
and
to
suggest
that
several
amendments were already moved and
therefore, the present amendment ought
not be allowed without considering the fact
that amendment sought by revisionists did
not meet any of the contingency or
principles on which an amendment can be
disallowed and since it was the suit of the
revisionists themselves, there cannot be
any presumption that revisionists would be
interested in delaying its disposal and
therefore, the Court below wholly illegally
has failed to consider the matter and
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
committed material illegality in passing the
impugned order.

10. On the contrary Sri Singh,
learned counsel for respondents submitted
that amendment in question is nothing but
an attempt to delay the proceedings in final
disposal of suit and even otherwise it has
rightly been rejected by the Court below.
He also placed reliance on Apex Court
decision
in
Salem
Advocate
Bar
Association, Tamil Nadu Vs. Union of
India, AIR 2005 SC 3353.

11. I have heard learned counsel for
the parties and perused the record.

12. A perusal of amendment
application would show that it is directly
connected with the issue raised by the
plaintiffs in original suit and in fact it
intend to add certain paragraphs and
grounds which are discernable from the
facts stated in the amendment application,
which
if
proved,
may
entitle
the
plaintiffs/revisionists grant of relief as
sought in the original suit.

13.

Learned
counsel
for
the
respondents could not dispute that these
facts are not already on record or part of
proceedings and are in the kind of
repetition. The officials of Government
were not already party to the suit in their
individual
capacity.
They
were
not
impleaded eo nomini and therefore, for the
first time are sought to be so impleaded in
view of the well established law that a plea
of mala fide shall not be entertained and
heard by the Court unless the person
against whom mala fide is alleged is
impleaded by name i.e. eo nomini.

14. A careful reading of entire
amendment,
which
the
plaintiffs/
revisionists has sought also does not show
that it would change the nature of the suit
or something which can be said to be
barred by limitation ex facie. The well
established principles for denying an
amendment I do not find exist in the
present case and learned Counsel for the
respondents
have
also
failed
to
demonstrate the same. The Court below
has therefore erred in law in rejecting
application
of
plaintiffs-revisionists
seeking amendment in the plaint.

15. Some other arguments have also
been advanced by counsel for the parties
on merits of the suit but I find that any
discussion and observation by this Court at
this stage would prejudice the original suit
itself, which is pending since the Court
below may find difficulty to form an
opinion otherwise than the observation
made by this Court and learned counsel for
the parties fairly agree thereto. In these
circumstances the issues raised otherwise
on merits of the original suit ought not be
discussed hereat. I proceed to do so.

16. In the result the impugned order
in my view cannot sustain. The revision is
allowed. The impugned order dated
23.3.2012 passed by Addl. District Judge,
Court No.14, Allahabad is hereby quashed.
The
amendment
application
of
the
plaintiffs/revisionists stands allowed. The
necessary amendment shall be made in the
plaint within 30 days from today. An
opportunity shall also be granted by the
Court below to the opposite parties to file
written
statement/additional
written
statement, if any, in order to reply
amended part of the plaint and thereafter it
shall endeavour to decide the suit
expeditiously, in accordance with law.
2 All] Union of India & others V. Indrajit Tewari
523

17. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Second Appeal No. - 193 of 2005

Union of India & others
...Appellants
Versus
Indrajit Tewari

 ...Respondents

Counsel for the Appellants
Sri U.N. Sharma
C.S.C.
Sri S.K. Rai

Counsel for the Respondents:
Sri I. N. Singh
Sri Ajai Yadav
Sri Raj Nath Pandey

Constitution of India, Article 311 (2)-
Dismissal
order-member
of
Border
Security
Force-suit
for
declaration
seeking
dismissal
as
nullity-as
no
opportunity of hearing as provided in
Article 311 (2) given that no charge
sheet-no inquiry conducted-Trail Court
Decreed the suit-1st Appellate Court
dismissed suit as protection of Article
311 (1) not available-Second Appeal
partly allowed-as plaintiff/Respondents
not holding Civil Post-no question of
protection of Article 311 (2)-remanded
back before Appellate Court to adjudge
the validity of dismissal order under BSF
rule.

Held: Para 19

In view of the answers to questions 1
and 2, the decision of the trial court on
issue no.1, that the order of termination,
apart from other provisions, was in
violation of the provisions of Article 311
(1) and (2), requires reconsideration.
However, considering the dicta of the
Apex Court in the case of Union of India
versus Ram Phal (supra), it still has to be
seen whether the termination was in
accordance with the provisions of the
BSF Rules or not. As no finding has been
recorded on that score by the appellate
court,
I
consider
it
appropriate
to
remand
the
matter
to
the
lower
appellate court to test the validity of the
order of termination in accordance with
the law.
Case law discussed:
(1981) 2 SCC 103 (Paragraph no. 6); 1996 AIR
SC 2881 (paragraph No. 5); 1995 Supp (4)
SCC 286(paragraph No. 59); 1981 (3) SLR
page 686; AIR 1971 SC 2111; (1996) 7 SCC
546; (1979) 2 SCC 463; 1971 Supreme Court
2111

(Delivered by Hon'ble Manoj Misra, J.)

1. This is defendants' appeal against
the judgment and decree dated 29.11.1995
passed by the Civil Judge (Senior
Division), Ballia in Civil Appeal No. 35 of
1994 arising out of an Original Suit No.
453 of 1985.

2. Original Suit No. 453 of 1985 was
instituted by the plaintiff-respondent for
declaration that the order dated 13.03.1985
passed
by
the
Commandant,
56th
Battalion, Border Security Force is non-est
and non-existent in the eye of law and that
the
plaintiff
continues
to
serve
as
Constable of the Border Security Force as
well as to allow the plaintiff to resume his
duties as Constable, and further for a
mandatory injunction thereby directing the
defendants to make payment of arrears of
salary to the plaintiff-respondent as also
the regular payment of the monthly salary.

3. Plaint case, in short, was that the
plaintiff was appointed on 19.08.1970 as
Constable (Motor Driver) and, at the
relevant time, was posted at 56th Battalion,