# Ram Pyare Singh Defendant/ v. Ram Govind and others Plaintiffs/

- **Citation:** (2006) 2 ILRA 933
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-14
- **Case number:** Civil Misc. Writ Petition No.8600 of 2006
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pyare-singh-defendant-v-ram-govind-and-others-plaintiffs-40686
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order I rule 10Impleadment-by
Subsequent
purchasure-in a suit for arrears of renton the grand during pendancy of suit the
applicants
have
purchased
the
accommodation in question-allowed by
Trial Court-challenge on the grand-that
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
without prior notice of 106 T.P. Act-the
suit for arrears of rent can not be
maintained-held-as the suit was already
pending-Notice u/s 106 T.P. Act not
required.

Held: Para 2

By mere impleadment of respondents 2
and 3 it cannot be said that the defence
which
were
available
are
waived.
Petitioner's defence including that of
notice
are
still
open.
Reading
the
application filed by respondents 2 and 3
and
the
order
it
appears
that
respondents
2
and
3
have
sought
impleadment on the ground that the suit
for recovery of rent is pending. In this
view of the matter I do not find any error
in the orders passed by the trial court
and affirmed by the revisional court
whereby the courts have allowed the
application
for
impleadment
of
the
respondents.

## Text

2 All] Ram Pyare Singh V. Ram Govind and others
933
necessary for the purpose of determining
the real questions in the controversy
between the parties;
(v) The amendment should be refused
where the plaintiff's Suit would be wholly
displaced by the proposed amendment;
(vi) Where the effect of the amendment
would be to take away from the defendant
a legal right which has accrued to him by
lapse of time or by operation of some law;
(vii) The amendment in the pleadings
should not be allowed where the Court
finds that amendment sought for has not
been made in good faith or suffers from
lack of bona fides; and
(viii)
Ordinarily, the amendment must
not be allowed where a party wants to
withdraw from the admission made by it
in the original pleadings."

In M/s Modi Spinning & Weaving
Mills Co. Ltd. (Supra), the Hon'ble
Supreme Court specifically held that
amendment in the pleadings is not
permitted if it seeks to "displace the
plaintiff completely from the admissions
made by the defendant in the written
statement."

8. In view of the above it is well
settled that amendment can be allowed at
any stage but there must be some
reasonable explanation by the person
concerned who approached this Court by
way to amend the pleadings with a
specific case supported by the document
that the amendment sought or the relief
sought by way of amendment was not in
the knowledge when the suit was filed. It
is also well settled now that if the
amendment does not change the nature of
the suit and does not effect the rights of
the parties, it can be allowed at any point
of time. But in the present case
admittedly, the suit was filed in the year
1982 and the petitioner was dispossessed
from the land in dispute in the year 1983
but the amendment application was filed
in the year 1996, which is highly belated
and the Trial Court has wrongly allowed
the application which clearly prejudice
the case of the defendant and allowing the
application will unnecessarily harass the
respondents, therefore, the Revisional
Court has considered the submissions that
the application filed on behalf of the
petitioner is highly belated after a lapse of
13 years and as such it cannot be allowed.

9. In view of the aforesaid fact, I
find no merit in the writ petition. The writ
petition lacks of merits and is hereby
dismissed.

10. There shall be no order as to
costs.

Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2006

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.8600 of 2006

Ram Pyare Singh ...Defendant/Petitioner
Versus
Ram Govind and others ...Plaintiffs/
 Respondents

Counsel for the Petitioner:
Sri Manish Dev Singh

Counsel for the Respondents:

Code of Civil Procedure-Order I rule 10Impleadment-by
Subsequent
purchasure-in a suit for arrears of renton the grand during pendancy of suit the
applicants
have
purchased
the
accommodation in question-allowed by
Trial Court-challenge on the grand-that
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
without prior notice of 106 T.P. Act-the
suit for arrears of rent can not be
maintained-held-as the suit was already
pending-Notice u/s 106 T.P. Act not
required.

Held: Para 2

By mere impleadment of respondents 2
and 3 it cannot be said that the defence
which
were
available
are
waived.
Petitioner's defence including that of
notice
are
still
open.
Reading
the
application filed by respondents 2 and 3
and
the
order
it
appears
that
respondents
2
and
3
have
sought
impleadment on the ground that the suit
for recovery of rent is pending. In this
view of the matter I do not find any error
in the orders passed by the trial court
and affirmed by the revisional court
whereby the courts have allowed the
application
for
impleadment
of
the
respondents.

(Delivered by Hon'ble Anjani Kumar, J.)

Heard
learned
counsel
for
the
petitioner.

1. The petitioner-tenant, aggrieved
by an order passed by the trial court and
affirmed by the revisional court whereby
the revisional court has allowed an
application filed by respondents 2 and 3
for impleadment, approached this Court
by means of this writ petition under
Article 226 of the Constitution of India.

2. The brief facts are that during the
pendency of a suit for arrears of rent and
eviction it appears that respondents 2 and
3 have purchased 2/3 share of the
property in dispute by registered sale deed
which is not disputed. An application for
impleadment has been filed on behalf of
these two persons which has been rejected
by the trial court. Aggrieved thereby a
revision was filed before the revisional
court which is allowed and the matter is
remanded back to the trial court decide
afresh in case a fresh application is filed
under Order 1 Rule 10. Secondly, an
application was filed by respondents 2
and 3 for impleadment on the ground that
they have purchased they came to know
that a suit with regard to recovery of rent
is
pending,
they
prayed
for
their
impleadment as respondent 2 and 3 are
necessary parties. This application was
allowed by the trial court by order dated
29th September 2005. Aggrieved thereby
the petitioner preferred a revision before
the revisional court which has been
rejected by the impugned order dated 10th
November 2005, respondent 2 and 3 are
bona fide purchaser of the property in
dispute, for filing a suit they ought to
have served a notice on the petitioner
under Section 106 of Transfer of Property
Act and by their impleadment at this stage
the position in law would be as if notice
under Section 106 of Transfer of Property
Act stood waved and it is settled law that
without serving a notice under Section
106 of Transfer of Property Act no suit
for eviction can be filed. Learned counsel,
therefore, submitted that the view taken
by the trial court and affirmed by the
revisional court, therefore, suffers from
manifest error.

I have given my considered thought
to the aforesaid argument but I do not find
any force. By mere impleadment of
respondents 2 and 3 it cannot be said that
the defence which were available are
waived. Petitioner's defence including
that of notice are still open. Reading the
application filed by respondents 2 and 3
and the order it appears that respondents 2
and 3 have sought impleadment on the
ground that the suit for recovery of rent is
2 All] President,S.C.S.S.S.Mahavidyalay Samiti and another V. A.B. Tiwari and others
935
pending. In this view of the matter I do
not find any error in the orders passed by
the trial court and affirmed by the
revisional court whereby the courts have
allowed the application for impleadment
of the respondents.

3. In view of what has been stated
above the writ petition has no force and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 13389 of 2006

President Shri Chaturbhuj Sharma Sikshan
Sansthan Mahavidyalay Samit Orai, District
Jalaun and another ...Petitioners
Versus
Awadh Bihari Tiwari @ Ram Babu and
others

...Respondents

Counsel for the Petitioners:
Sri B.N. Agrawal
Sri Sanjay Agrawal

Counsel for the Respondents:
Sri M.C. Chaturvedi
Sri Dwivedi S.C.
S.C.

(A) Code of Civil Procedure-Order XI
rule-12 readwith section 151-Application
for discovery of certain documents-under
heading
of
151
C.P.C.-application
otherwise full of merit-held-mention of
wrong provision-can not be basis for
rejection-petitioner/Defendant
being
president and Secretary of Societydirection for presenting those document
can not be said erroneous.

Held: Para 5

The mere mention of provision on the
heading of the application will not render
the application liable for rejection. On
the contrary the prayer made in the
application if found to be sound and
covered under some other provision of
the Code, it will not be treated as one
made under Section 151 C.P.C. Such
application should usually be considered
in the light of its otherwise merits by the
court.
In
the
present
case,
the
application with the prayer, appears to
be pure and simple under the provision
of Order XI, Rule 12 C.P.C. for discovery
of document. It is definitely an order
passed under that provision only and the
application is not liable to be rejected
summarily because it wrongly mentions
Section 151 C.P.C. in its heading. The
aforesaid case law of N.I.M.H. & Neuro
Sciences (supra) is not applicable with
the facts of this case. The trial court has
given its serious thoughts to the prayer
made
in
the
application
of
the
respondents plaintiffs and has found that
the documents, which were sought to be
discovered,
would
definitely
be
in
possession of the petitioners, who are
President and Secretary of the society
and who alone represent the society.
Therefore, if a direction has been given
to them for presenting those documents,
the said order cannot be said to be
erroneous.

(B) Code of Civil Procedure-Section 11Resjudicata-application for production of
document
under
order
XI
rule
12
rejected due to want of supporting
affidavit in-subsequent application under
section
151
duly
supported
with
affidavit-held-proper any order whether
interlocutory
or
not-passed
ignoring
merit will not operate as resjudicata.

Held:
1981 AWC-17
2005 (2) AWC-1865

(Delivered by Hon'ble Umeshwar Pandey, J.)

Heard learned counsel for the parties.