# Siraj Ahmad @ Sirajuddin & Ors v. Sanjeev Kumar & Ors

- **Citation:** (2020) 1 ILRA 1601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Matters Under Article-227 No. 8621 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siraj-ahmad-sirajuddin-ors-v-sanjeev-kumar-ors-45276
- **Pages:** 9

## Headnote

A. Waqf Act, 1995, Section 85 - Bar of
jurisdiction of Civil Courts in respect of
matter relating to waqf, waqf property -
Civil Procedure Code, Section 9, Order 7
Rule 11 - suit property shown in the
revenue

records

as

a
"kabristan" (graveyard) - No material to
show that suit property was a waqf
property by way of its inclusion in the list
of
auqaf,
published
 in the Official Gazette or registered as
waqf before - Revenue records do not
confer title - S. 85 will not be applicable -
Jurisdiction of Civil Court, not barred.
(Para 22 & 23)

Matter Under Article 227 dismissed. (E-5)

List of cases cited: -

## Text

1602 INDIAN LAW REPORTS ALLAHABAD SERIES
influenced, either by the findings of
learned Sessions Judge or observations
made by this Court, hereinabove, in this
order. Judicial decision making shall be
taken on the basis of evidence led before
the Magistrate.
----------
(2020)1ILR 1601

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article-227 No. 8621 of 2019

Siraj Ahmad @ Sirajuddin & Ors.
 ...Petitioners
Versus
Sanjeev Kumar & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bashir Ahmad Khan

Counsel for the Respondents:
Sri Rakesh Kumar Pandey, Sri Sushil
Kumar Pandey, Sri Ravi Agrawal

A. Waqf Act, 1995, Section 85 - Bar of
jurisdiction of Civil Courts in respect of
matter relating to waqf, waqf property -
Civil Procedure Code, Section 9, Order 7
Rule 11 - suit property shown in the
revenue

records

as

a
"kabristan" (graveyard) - No material to
show that suit property was a waqf
property by way of its inclusion in the list
of
auqaf,
published
 in the Official Gazette or registered as
waqf before - Revenue records do not
confer title - S. 85 will not be applicable -
Jurisdiction of Civil Court, not barred.
(Para 22 & 23)

Matter Under Article 227 dismissed. (E-5)

List of cases cited: -
1. Most Rev. P.M.A. Metropolitan & Ors. Vs.
Moran Mar Marthoma & Anr 1995 Supp (4) SCC 286

2. Dhulabhai Vs. State of M.P. AIR 1969 SC 78

3.Secretary of State Vs. Mask & CompanyAIR 1940
PC 105

4. FirmSeth Radha Kishan (Deceased) represented
by Hari Kishan Vs. the Administrator, Municipal
Committee, Ludhiana AIR 1963 SC 1547

5. Smt. Ganga Bai Vs. Vijay Kumar & Ors(1974)
 2 SCC 393

6.Dhannalal Vs.Kalawatibai&Ors(2002) 6 SCC 1
6

7. Guru Amarjit Singh Vs. Rattan Chand & Ors
(1993) 4 SCC 349

8.Jattu Ram Vs. HakamSingh (1993) 4 SCC 403

9. Union of India & Ors. Vs. Vasavi
Cooperative Housing Society Limited & Ors v

10.Sayed EkramSaha & Ors. Vs. Debendra Kum
ar Pati & Ors AIR 2018 Ori 47

11.Shalini Shyam Shetty & Anr.Vs. Rajendra Sh
ankar Patil (2010) 8 SCC 329

12.RadheyShyam & Anr. Vs. Chhabi Nath & Ors
(2015) 5 SCC 423

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Bashir Ahmad Khan,
learned counsel for the petitioners and Sri Ravi
Agrawal alongwith Sri Rakesh Kumar Pandey,
learned counsel for the respondents.

2. The present petition has been filed
seeking a prayer to set aside the order
dated 24.11.2018 passed by the Civil
Judge (Junior Division)-I, Hapur in
Original Suit No.199 of 2017 (Sanjeev
Kumar & Ors. Vs. Siraj Ahmad & Ors.)
whereby the application (Paper No.90Ga)
1 All. Siraj Ahmad @ Sirajuddin & Ors. Vs. Sanjeev Kumar & Ors.
1603
filed by the petitioners under Order VII
Rule 11 of the Code of Civil Procedure,
19081 has been rejected.

3. The petitioners also seek to assail
the order dated 23.07.2019 passed by the
District Judge, Hapur in Civil Revision
No.75 of 2018 (Siraj Ahmad & Ors. Vs.
Sanjeev Kumar & Ors.) in terms of which
the order rejecting the application under
Order VII Rule 11 CPC has been affirmed.

4. The only ground which has been
sought to be canvased on behalf of the
petitioners to support their claim for rejection
of plaint under Order VII Rule 11 CPC is by
placing reliance upon Section 85 of the Waqf
Act, 19952 to contend that the property in
question being a waqf property the jurisdiction
of the civil court would be barred.

5. Per contra, learned counsel for the
respondents has supported the orders passed by
the courts b0............................elow by
submitting that no material was placed on
record by the petitioners to support their claim
that the property in question is a waqf property.
It has further been submitted that there was no
material to show that the property was
included in the list of auqaf published under
the Act, 1995 and the claim of the petitioners
which was based merely on certain revenue
entries could not be accepted.

6. In order to examine the rival
contentions the scope of the provisions
under Order VII Rule 11 CPC is required
to be considered and it has also to be seen
as to whether, in the facts of the case the
jurisdiction of the civil court would be
barred in view of the provisions contained
under Section 85 of the Act, 1995.

7. Section 9 CPC enables any person,
as a matter of right, to file a suit of a civil
nature excepting those, the cognizance
whereof is either expressly or impliedly
barred.

8. The two conditions which are
required to be fulfilled for a civil court to
have jurisdiction are; (a) the suit must be
of a civil nature; and (b) the cognizance of
such a suit should not have been expressly
or impliedly barred.

9. The expression "civil nature" and
the scope of jurisdiction of a civil court
under Section 9 CPC was considered in
the
case
of
Most
Rev.
P.M.A.
Metropolitan & Ors. Vs. Moran Mar
Marthoma & Anr.3, and it was held as
follows:-

"28. ...The expansive nature of
the section is demonstrated by use of
phraseology both positive and negative.
The earlier part opens the door widely and
latter debars entry to only those which are
expressly or impliedly barred. The two
explanations, one existing from inception
and latter added in 1976 bring out clearly
the legislative intention of extending
operation of the section to such religious
matters where right to property or office is
involved irrespective of whether any fee is
attached to the office or not. The language
used is simple but explicit and clear. It is
structured on the basic principle of a
civilised jurisprudence that absence of
machinery
for
enforcement
of
right
renders it nugatory. The heading which is
normally key to the section brings out
unequivocally that all civil suits are
cognizable unless barred. What is meant
by it is explained further by widening the
ambit of the section by use of the word
'shall' and the expression, "all suits of a
civil
nature"
unless
"expressly
or
impliedly barred".
1604 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Each word and expression
casts an obligation on the court to exercise
jurisdiction for enforcement of right. The
word 'shall' makes it mandatory. No court
can refuse to entertain a suit if it is of
description mentioned in the section. That
is amplified by use of expression 'all suits
of civil nature'. The word 'civil' according
to dictionary means "relating to the citizen
as an individual; civil rights". In Black's
Legal Dictionary it is defined as "relating
to provide rights and remedies sought by
civil actions as contrasted with criminal
proceedings". In law it is understood as an
antonym of criminal. Historically the two
broad
classifications
were
civil
and
criminal. Revenue, tax and company etc.
were added to it later. But they too pertain
to the larger family of 'civil'. There is thus
no doubt about the width of the word
'civil'. Its width has been stretched further
by using the word 'nature' along with it.
That is even those suits are cognizable
which are not only civil but are even of
civil nature. In Article 133 of the
Constitution an appeal lies to this Court
against any judgment, decree or order in a
"civil proceeding". This expression came
up for construction in S.A.L. Narayan
Row v. Ishwarlal Bhagwandas (AIR 1965
SC 1818). The Constitution Bench held "a
proceedings for relief against infringement
of civil right of a person is a civil
proceedings". In Arbind Kumar Singh v.
Nand Kishore Prasad (AIR 1968 SC 1227)
it was held "to extend to all proceedings
which directly affect civil rights". The
dictionary
meaning
of
the
word
'proceedings' is "the institution of a legal
action, any step taken in a legal action". In
Black's Law Dictionary it is explained as:

"In a general sense, the form and
manner of conducting juridical business
before a court or judicial officer. Regular
and orderly progress in form of law,
including all possible steps in an action
from its commencement to the execution
of
judgment.
Term
also
refers
to
administrative
proceedings
before
agencies, tribunals, bureaus, or the like."

The word 'nature' has been
defined as "the fundamental qualities of a
person or thing; identity or essential
character; sort; kind; character". It is thus
wider in content. The word 'civil nature' is
wider than the word "civil proceeding".
The section would, therefore, be available
in every case where the dispute has the
characteristic of affecting one's rights
which are not only civil but of civil
nature."

10. A litigant having grievance of a
civil nature thus has a right to institute a
suit in a civil court unless its cognizance is
either expressly or impliedly barred. In
Dhulabhai Vs. State of M.P.4 it was held
that the exclusion of the jurisdiction of
civil court is not to be readily inferred and
such exclusion must be clear.

11. Reference may also be had to the
judgment in the case of Secretary of State
Vs. Mask & Company5 which is the
leading
decision
on
the
point
that
exclusion of jurisdiction of civil courts is
not to be readily inferred but that such
exclusion
must
either
be
explicitly
expressed
or
clearly
implied.
The
observations made in the judgment are as
follows:-

"...It is settled law that the
exclusion of the jurisdiction of the Civil
Courts is not to be readily inferred, but
that such exclusion must either be
explicitly expressed or clearly implied. It
is also well settled that even if jurisdiction
is so excluded, the Civil Courts have
jurisdiction to examine into cases where
1 All. Siraj Ahmad @ Sirajuddin & Ors. Vs. Sanjeev Kumar & Ors.
1605
the provisions of the Act have not been
complied with, or the statutory tribunal has
not
acted
in
conformity
with
the
fundamental
principles
of
judicial
procedure..."

12.

The
aforementioned
legal
position was reiterated in Firm Seth
Radha Kishan (Deceased) represented
by Hari Kishan Vs. the Administrator,
Municipal
Committee,
Ludhiana6
wherein it was stated that at the mere
conferment of special jurisdiction on a
tribunal in respect of any matter does not
itself exclude the jurisdiction of civil
courts. The observations made in the
judgment are as follows:-

"7. Under S. 9 of the Code of
Civil Procedure the Court shall have
jurisdiction to try all suits of civil nature
excepting suits of which cognizance is
either expressly or impliedly barred. A
statute,
therefore,
expressly
or
by
necessary
implication,
can
bar
the
jurisdiction of civil Courts in respect of a
particular matter. The mere conferment of
special jurisdiction on a tribunal in respect
of the said matter does not in itself exclude
the jurisdiction of civil Courts. The statute
may specifically provide for ousting the
jurisdiction of civil Courts; even if there
was no such specific exclusion, if it creates
a liability not existing before and gives a
special and particular remedy for the
aggrieved party, the remedy provided by it
must be followed. The same principle
would apply if the statute had provided for
the particular forum in which the said
remedy could be had. Even in such cases,
the Civil Court's jurisdiction is not
completely ousted. A suit in a civil Court
will always lie to question the order of a
tribunal created by a statute, even if its
order is, expressly or by necessary
implication, made final, if the said tribunal
abuses its power or does not act under the
Act but in violation of its provisions."

13. The inherent right in every
person to bring a suit of civil nature unless
the same is barred by statute was
emphasised in the case of Smt. Ganga Bai
Vs. Vijay Kumar & Ors.7, in the
following words:-

"15. ...There is an inherent right
in every person to bring suit of a civil
nature and unless the suit is barred by
statute one may, at one's peril, bring a suit
of one's choice. It is no answer to a suit,
howsoever frivolous the claim, that the
law confers no such right to sue. A suit for
its maintainability requires no authority of
law and it is enough that no statute bars
the suit..."

14. A similar view was taken in the
case of Dhannalal Vs. Kalawatibai &
Ors.8 wherein it was stated that plaintiff is
dominus litis and it is for him to choose
the forum unless there be a rule of law
excluding access to the said forum. The
observations made in the judgment are as
follows:-

"23. Plaintiff is dominus litis,
that is, master of, or having dominion
over, the case. He is the person who has
carriage and control of an action. In case
of conflict of jurisdiction the choice ought
to lie with the plaintiff to choose the forum
best suited to him unless there be a rule of
law excluding access to a forum of the
plaintiff's choice or permitting recourse to
a forum will be opposed to public policy
or will be an abuse of the process of law."

15. In the case at hand the plea which
has been sought to be raised on behalf of
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners for rejection of plaint under
Order VII Rule 11 CPC is based on the
contention that the suit property having
been shown in the revenue records as a
"kabristan" (graveyard) as a consequence
the same would be a waqf property and in
view of the bar under Section 85 of the
Act, 1995 the jurisdiction of the civil court
would be barred.

16. In order to appreciate the
aforementioned contention the provision
contained under Section 85 may be
adverted to. For ease of reference Section
85 is being reproduced below:-

"85. Bar of jurisdiction of civil
courts.--No suit or other legal proceeding
shall lie in any civil court, revenue court
and any other authority in respect of any
dispute, question or other matter relating
to any wakf, waqf property or other matter
which is required by or under this Act to
be determined by a Tribunal."

17. The expression "waqf" has been
defined under Section 3(r) of the Act,
1995, and the same is extracted below:-

"3. Definitions.--In this Act,
unless the context otherwise requires,-- x x
x x x

(r) "waqf" means the permanent
dedication by any person, of any movable
or immovable property for any purpose
recognised by the Muslim law as pious,
religious or charitable and includes--

(i) a waqf by user but such waqf
shall not cease to be a waqf by reason only
of the user having ceased irrespective of
the period of such cesser;

(ii) a Shamlat Patti, Shamlat
Deh, Jumla Malkkan or by any other name
entered in a revenue record;

(iii) "grants", including mashrutul-khidmat for any purpose recognised by
the Muslim law as pious, religious or
charitable; and

(iv) a waqf-alal-aulad to the
extent to which the property is dedicated
for any purpose recognised by Muslim law
as pious, religious or charitable, provided
when the line of succession fails, the
income of the waqf shall be spent for
education, development, welfare and such
other purposes as recognised by Muslim
law, and "waqif" means any person
making such dedication;"

18. Section 5 of the Act, 1995
provides for publication of list of auqaf in
the Official Gazette, which reads as
follows:-

"5. Publication of list of auqaf.-
-(1) On receipt of a report under subsection (3) of section 4, the State
Government shall forward a copy of the
same to the Board.

(2) The Board shall examine the
report forwarded to it under sub-section
(1) and forward it back to the Government
within a period of six months for
publication in the Official Gazette a list of
Sunni auqaf or Shia auqaf in the State,
whether in existence at the commencement
of this Act or coming into existence
thereafter, to which the report relates, and
containing such other particulars as may
be prescribed.

(3) The revenue authorities shall-
-

(i) include the list of auqaf
referred to in sub-section (2), while
updating the land records; and

(ii) take into consideration the
list of auqaf referred to in sub-section (2),
while deciding mutation in the land
records.
1 All. Siraj Ahmad @ Sirajuddin & Ors. Vs. Sanjeev Kumar & Ors.
1607

(4) The State Government shall
maintain a record of the lists published
under sub-section (2) from time to time."

19. In terms of Section 36 of the Act,
1995 every waqf whether created before or
after commencement of the Waqf Act,
1995 is required to be registered at the
office of the Waqf Board9, and in terms of
sub-section (8) thereof every application
for registration of waqf is required to be
made within three months from the date
of; (a) commencement of the Act, 1995,
(b) the creation of the waqf, (c) the
establishment of the Board, as the case
may be. The relevant provisions in this
regard are being extracted below:-

"36. Registration.--(1) Every
waqf, whether created before or after the
commencement of this Act, shall be
registered at the office of the Board.

x x x x x

(8) In the case of auqaf created
before the commencement of this Act,
every application for registration shall be
made, within three months from such
commencement and in the case of auqaf
created after such commencement, within
three months from the date of the creation
of the waqf:

Provided that where there is no
Board at the time of creation of a waqf,
such application will be made within three
months from the date of establishment of
the Board.

Comments: Registration of every
waqf at the office of the Board is a sine
qua non to its valid creation. Every
application for registration of waqf shall
be made within three months from the date
of (a) the commencement of this Act, (b)
the creation of the waqf, (c) the
establishment of the Board, as the case
may be."

20. A plain reading of the provisions
under Section 36 lead to the inference that
registration of every waqf at the office of
the Board is a sine qua non to its valid
creation.

21. The Act, 1995 provides for
publication of the list of auqaf under
Section 5 after receipt of a report of survey
under sub-section (3) of Section 4 and it is
also
enjoined
upon
the
Revenue
Authorities to include the list of auqaf
published in the Official Gazette, while
updating the land records.

22. The courts below have recorded
that the petitioners have not been able to
place any material on record that the
property in question, which according to
them was entered in revenue records, as
"kabristan", was a waqf property, as per
the requirement under the Act, 1995, by
way of its inclusion in the list of auqaf
which is required to be published in the
Official Gazette or by way of its
registration as a waqf before the Board.

23. As regards the reliance sought to
be placed on certain revenue entries
wherein the property is stated to be entered
as "kabristan" this Court may take into
consideration that it is settled law that the
revenue records do not confer title and
even if the entries in the record of rights
may be held to carry value that by itself
would not confer any title upon the person
claiming on the basis of the same.

24. The Supreme Court in Guru
Amarjit Singh Vs. Rattan Chand & Ors.10
held that entry in revenue records are not
proof of title, and it was stated as follows:-

"2. ...It is settled law that entries
in the Jamabandi are not proof of title.
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
They are only statements for revenue
purpose. It is for the parties to establish the
relationship or title to the property unless
there is unequivocal admission..."

25. A similar position was reiterated
in Jattu Ram Vs. Hakam Singh11, and it
was held as follows:-

"3. ...The sole entry on which the
appellate court placed implicit reliance is
by the Patwari in Jamabandi. It is settled
law that the Jamabandi entries are only for
fiscal purpose and they create no title..."

26. In Union of India & Ors. Vs.
Vasavi Cooperative Housing Society
Limited & Ors.12 the same legal position
has again been stated in the following
terms:-

"21. This Court in several
judgments has held that the revenue
records do not confer title. In Corpn. of the
City of Bangalore v. M. Papaiah (1989) 3
SCC 612 this Court held that: (SCC p.
615, para 5)

"5. ...It is firmly established that
the revenue records are not documents of
title, and the question of interpretation of a
document not being a document of title is
not a question of law."

In Guru Amarjit Singh v. Rattan
Chand (1993) 4 SCC 349 this Court has
held that: (SCC p. 352, para 2)

"2.
...that
entries
in
the
Jamabandi are not proof of title."

In State of H.P. v. Keshav Ram
(1996) 11 SCC 257 this Court held that:
(SCC p. 259, para 5)

"5. ...an entry in the revenue
papers by no stretch of imagination can
form the basis for declaration of title in
favour of the plaintiffs."

27. This Court may also take notice
of the fact that the Act, 1995 has been
enacted
to
provide
for
the
better
administration of auqaf for the matters
connected therewith or incidental thereto,
and as per Section 85, the bar of
jurisdiction of the civil courts is in respect
of any dispute, question or other matter
relating to any waqf, waqf property or
other matter which is required by or under
the Act, 1995 to be determined by a
Tribunal, therefore, it is only those matters
which are required by or under the Act,
1995 to be determined by a Tribunal that
the bar under Section 85 would apply. It is
also seen from the scheme of the Act,
1995 that the jurisdiction of the civil
courts is not completely ousted.

28. A similar plea with regard to the
ouster of jurisdiction of civil courts in
view of the provision contained under
Section 85 of the Act, 1995 was
considered in the case of Sayed Ekram
Saha & Ors. Vs. Debendra Kumar Pati
& Ors.13 and the said contention was
repelled after taking notice of the fact that
no material was placed on record to
establish that the property involved in the
suit was enlisted property in the list of
auqaf prepared under the Act, 1995. The
relevant
observations
made
in
the
judgment are as follows:-

"6. A whole reading of the
aforesaid provisions makes it clear that
first of all the property must be a auqaf
property finds place in the list prepared
following section 5 of the Act based on the
preliminary
survey
following
the
provisions contained in Section 4 of the
Act and in the event any dispute regarding
the status of such property under the list,
the Tribunal constituted under the Act has
been given power to decide such matters.
1 All. Siraj Ahmad @ Sirajuddin & Ors. Vs. Sanjeev Kumar & Ors.
1609
So far as provision under Section 81(5) is
concerned, it also leaves no doubt that the
Tribunals have the same power like the
Civil Court under the Code of Civil
Procedure while trying a suit or executing
a
decree
or
order.
Taking
into
consideration the claim of Sri Nayak,
learned counsel that Civil Court has all
powers to decide the dispute even
involving waqf property has no force.
Power given under Section 83 (5) of the
Act is limited to the extent following the
powers of Civil Court following the
provisions of the Code of Civil Procedure
relating to trial of a suit or executing a
decree or order and nothing beyond that.
Looking to the claim of Sri Nayak, learned
counsel for the petitioner, this Court finds
even though the petitioners claimed in the
court below that the property being waqf
property, a civil suit is barred under
Section 85 of the Act, but for no material
to establish that the property involved in
the suit is enlisted property involving the
list of Waqf or auqafs as prepared under
Sections 4 and 5 of the Act, a civil suit at
this stage is not barred..."

29. The jurisdiction of civil court is
plenary in nature and unless the same is
ousted
expressly
or
by
necessary
implication, it will have jurisdiction to try
all
types
of
suits.
The
ouster
of
jurisdiction, it is well settled, cannot be
inferred readily and onus lies on the
person asserting the ouster and vesting of
jurisdiction in some other court, tribunal or
authority. Section 9 CPC enables any
person, as of right, to file a suit of civil
nature excepting those, the cognizance
whereof is expressly or by necessary
implication barred.

30. Order VII Rule 11(d) CPC is one
of such provisions which provides for
rejection of plaint, if it is barred by any
law. The provision therein being in the
nature of an exception the same must be
strictly
construed
and
the
embargo
thereunder to the maintainability of the
suit must be apparent from the averments
in the plaint.

31. The courts below having
recorded findings to the effect that no
material was placed on record by the
petitioner to show that the suit property is
a waqf or a waqf property or relates to any
other matter which is required to be
determined by a Tribunal constituted
under the Act, 1995, the bar under Section
85 whereunder the jurisdiction of civil
courts is ousted, has rightly been held to
be not attracted and in view of the same
the application of the petitioners for
rejection of the plaint has been turned
down. The orders passed by the courts
below therefore cannot be faulted with.

32. This Court may also take notice
of
the
fact
that
the
power
of
superintendence conferred under Article
227, is to be exercised most sparingly and
within the parameters which have been
summarized in the case of Shalini Shyam
Shetty & Anr. Vs. Rajendra Shankar
Patil14, and also in the case of Radhey
Shyam & Anr. Vs. Chhabi Nath &
Ors.15.

33. Counsel for the petitioners has
not been able to point out any material
error or illegality in the orders passed by
the court below so as to warrant
interference in exercise of power under
Article 227 of the Constitution of India.

34. The petition thus fails and is
accordingly dismissed.
----------
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 1609

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article-227 No. 8624 of 2019
(Civil)

M/s J.A. Construction ...Petitioner
Versus
Sardar Kuldeep Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Jain, Sri Abu Bakht, Sri
Nitin Jain

Counsel for the Respondents:
Sri Shailendra

A. Civil Procedure Code, 1908 - Order 6
Rule 17 proviso - Amendment of Written
statement at the belated stage of appeal
- Rejected - Burden on the person, who
seeks amendment, after commencement
of the trial to show that in spite of "due
diligence" such an amendment could not
have been sought earlier.

Defendant sought amendment in his WS - at
the stage of appeal - Trial court held filing of
amendment application at the belated stage of
appeal was with a view to delay the
proceedings & accordingly rejected - Held -
Petitioner failed to discharge the burden that
inspite of due diligence , amendments could
not be sought during the pendency of the
proceedings at the stage of trial - Amendments
sought at the stage of appeal were not bona
fide and the same were only with a view to
delay the proceedings. (Para 17)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

1.Chander Kanta Bansal VsRajinderSingh Anan
d (2008) 5 SCC 117
2.J. Samuel VsGattu Mahesh & Ors(2012) 2 SC
C 300

3.Revajeetu Builders and Developers Vs Naraya
naswami and Sons & Ors (2009) 10 SCC 84

4.M.RevannaVsAnjanamma & Ors(2019) 4 SCC
332

5. Vijay Hathising Shah & Anr. Vs Gitaben
Parshottamdas Mukhi & Ors(2019) 5 SCC 360

6. Madhaw Asharam Charitable Trust Hanuman
Mandir & Anr. Vs Shri Shamshul Khuda Khan
2019 (12) ADJ 41

7.Hari Narayan VsShanti Devi2019 (2) ARC 715

8. Shalini Shyam Shetty & Anr.Vs Rajendra Sha
nkar Patil (2010) 8 SCC 329

9. Radhey Shyam & Anr. Vs. Chhabi Nath & Ors
(2015) 5 SCC 423

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Abu Bakht, learned
counsel
for
the
petitioner
and
Sri
Shailendra, learned counsel appearing for
respondent nos.1 and 2.

2. The present petition has been filed
against the order dated 01.05.2018 passed by
the Additional District Judge, Court No.8,
Kanpur Nagar in Civil Appeal No.139 of 2016
rejecting the amendment application whereby
certain amendments had been sought by the
petitioner-defendant in his written statement.
The petitioner also seeks to assail the order
dated 17.09.2019 whereby another amendment
application (Application No.132Ga) again
seeking certain amendments in the written
statement filed by the petitioner-defendant has
also been rejected.

3. Contention of the learned counsel
for the petitioner is that the amendments in