# Society, Nagpur v. Swaraj Developers

- **Citation:** (2005) 3 ILRA 878
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-20
- **Case number:** Civil Misc. Writ Petition No. 66925 of 2005
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/society-nagpur-v-swaraj-developers-40605
- **Pages:** 3

## Headnote

Code of Civil Procedure-Section-115- as
amended by U.P. Act No. 14 of 2003Scope
of
Revision-whether
deciding
amendment
application
amounts
to
deciding the proceeding finally? Held-
'yes' revision-maintainable.

Held: Para 5

In view of what has been stated above,
it is clear that deciding an application for
amendment is deciding the proceedings
finally, therefore I am not in agreement
with the submission made by learned
counsel for the petitioner that revision is
not maintainable. My aforesaid view is
supported by the decision of the Apex
Court reported in 2003 (3) A.W.C., 2198
(SC)-Shiv Shakti Co-operative Housing
Society, Nagpur Vs. Swaraj Developers
and others. In view of the law laid down
by the apex Court in the case of Shiv
Shakti (supra), this writ petition has no
force and is accordingly dismissed.

Case law discussed:
2002 (8) ACJ 119-distinguished
2003 (3) AWC-SC 2198 relied on
3 All] Gauri Shankar V. Sita Ram and another
879

## Text

878 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
4.

In
Delhi
Administration,
through its Chief Secretary and others
v. Sushil Kumar, 1996 SCC 605
[Labour and Service 492], the Supreme
Court held that the verification of the
character and antecedents is one of the
most important criteria to test whether the
selected candidate was suitable to a post
or not. In the present case, the District
Magistrate has certified that the petitioner
has a good character except for his
involvement in the criminal case. In my
opinion, the respondents could not deny
an appointment on the post of Constable
merely because of the pendency of the
criminal trial.

5. In Sanjay Kumar v. State of
U.P. and others [2003] 3 UPLBEC
2193, this Court held that lodging of an
F.I.R. alone was not sufficient for an
incumbent to be denied an appointment
on the post of a Government office. This
judgment squarely applies to the present
facts and circumstances of the case.

6. In view of the aforesaid, the
petitioner is entitled to the relief claimed.
The writ petition is allowed and a
mandamus is issued to respondent no.2 to
call the petitioner and give him a
provisional appointment and send him for
training within two weeks from the date
of production of a certified copy of this
order.
It
is
made
clear
that
the
appointment of the petitioner would be
subject to the result of the criminal trial. It
is open to the respondents to make
another verification with regard to the
antecedents of the petitioner's character
after the judgement given by the trial
Court.

Petition Allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 66925 of 2005

Gauri Shankar

...Petitioner
Versus
Sita Ram and another ...Respondents

Counsel for the Petitioner:
Sri Shiv Murti Yadav

Counsel for the Respondents:
S.C.

Code of Civil Procedure-Section-115- as
amended by U.P. Act No. 14 of 2003Scope
of
Revision-whether
deciding
amendment
application
amounts
to
deciding the proceeding finally? Held-
'yes' revision-maintainable.

Held: Para 5

In view of what has been stated above,
it is clear that deciding an application for
amendment is deciding the proceedings
finally, therefore I am not in agreement
with the submission made by learned
counsel for the petitioner that revision is
not maintainable. My aforesaid view is
supported by the decision of the Apex
Court reported in 2003 (3) A.W.C., 2198
(SC)-Shiv Shakti Co-operative Housing
Society, Nagpur Vs. Swaraj Developers
and others. In view of the law laid down
by the apex Court in the case of Shiv
Shakti (supra), this writ petition has no
force and is accordingly dismissed.

Case law discussed:
2002 (8) ACJ 119-distinguished
2003 (3) AWC-SC 2198 relied on
3 All] Gauri Shankar V. Sita Ram and another
879
(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard learned counsel for the
petitioner.

The petitioner aggrieved by the order
passed by the revisional Court dated 28th
September, 2005, whereby the revisional
Court allowed the revision filed by the
respondent and set aside the order dated
27th September, 2004, passed by the trial
Court, approached this Court by means of
present writ petition under Article 226 of
the Constitution of India.

2. The brief facts of the present case
are that during the pendency of suit, the
petitioner-plaintiff filed an application
seeking amendment in the plaint, which
was allowed by the trial Court vide order
dated 27th September, 2004. Aggrieved
by the order passed by the trial Court, the
respondent-defendant preferred a revision
before the revisional Court under Section
115 of the Code of Civil Procedure. The
revisional Court vide order impugned in
the present writ petition allowed the
revision filed by the respondent observing
that by the amendment since the plaintiff
has completely changed the original case
and set up new pleadings, which has
changed the nature of the case, therefore
the trial Court was in error in allowing the
amendment application filed by the
petitioner-plaintiff. The revisional Court
thus rejected the application filed by the
plaintiff-petitioner.

3. Leaned counsel appearing on
behalf of the petitioner-plaintiff submitted
before this Court that in fact the revision
filed
by
the
respondent
is
not
maintainable and so far as the view taken
by the trial Court that by the amendment
the nature of the case will not be changed
and the respondent-defendant has got an
opportunity to object the same by filing
written statement. In support of his
contention,
learned counsel
for
the
petitioner has relied upon a decision of
the Apex Court reported in 2002 (1)
A.C.J., 119 - Prem Bakshi and others
Vs. Dharam Dev and others, wherein
the
Apex
Court
has
ruled
that
"amendment allowed by sub-ordinate
court could not be said to have finally
decided, it would not come under Clause
(a) of sub-section (1) of Section 115 of
the Code of Civil Procedure." The Apex
Court further held that "amendment in the
plaint would not amount failure of justice,
therefore interference by High Court
under Section 115 of the Code of Civil
Procedure is erroneous."

4. In view of the provisions of
Section 115 of the Code of Civil
Procedure, as amended in the State of
U.P. by U.P. Act No. 14 of 2003, Section
115 is substituted by a new section i.e.
sub-section (3). Sub-section (3) of the
U.P. Act No. 14 of 2003 is reproduced
below:-

"115. Revision.
(1) .........................................
(2) ...........................................
(3) The superior Court shall not,
under this section, vary or reverse any
order made except where,-----
(i) the order, if it had been made in
favour of the party applying for revision,
would have finally disposed of the suit or
other proceeding; or
(ii) the order, if allowed to stand,
would occasion a failure of justice or
cause irreparable injury to the party
against whom it is made."
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. In view of what has been stated
above, it is clear that deciding an
application for amendment is deciding the
proceedings finally, therefore I am not in
agreement with the submission made by
learned counsel for the petitioner that
revision is not maintainable. My aforesaid
view is supported by the decision of the
Apex Court reported in 2003 (3) A.W.C.,
2198 (SC) - Shiv Shakti Co-operative
Housing Society, Nagpur Vs. Swaraj
Developers and others. In view of the
law laid down by the apex Court in the
case of Shiv Shakti (supra), this writ
petition has no force and is accordingly
dismissed.

 Petition Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Second Appeal No.2585 of 1974

Janki Smt. and another
...Appellants
Versus
Murari Lal and others ...Respondents

Counsel for the Appellants:
Sri V.K.S. Chaudhary
Sri N.P. Singh
Km. Nand Prabha Shukla

Counsel for the Respondents:
Sri K.N. Upadhyay
Sri M.C. Singh
Sri Mithlesh Kumar Tiwari
Sri Indra Shekhar Tripathi
Sri S.K. Upadhyay

U.P.Z.A. & L.R. Act-1951-Section 168-Aread with U.P.Z.A. & L.R. (Amendment)
Act 2004-Section 9 read with subsequent
amendment Act No. 13 of 2005-Section
4-by Sale deed dated 15-1-1969-transfer
of fragments deemed to have been
violdable-provided not enter in Revenue
record in favour of State-Transferees
may get validated such transfer after
depositing such fee-within the period as
notified by government.

Held: Para 6

In terms of the above said amendments
in the present case, the sale deed dated
15.1.1969 executed by Smt. Ganga Devi
in favour of Amar Singh and Murari Lal
being void under Section 168-A as it
stood before the commencement of the
Act 2004, was deemed to have been
voidable in terms of Section 11 of the
special provisions and further amended
by Act No.27 of 2004 by which Section
11 has also been omitted as it stood and
has been replaced by Section 4 of U. P.
Act No.13 of 2004, in terms of which the
alleged
sale
deed
dated
15.1.1969
alleged to have become void stands
voidable in the case of transfer of such
fragment, provided, it has not been
entered in the revenue records in favour
of the State Government, on the date of
the commencement of the U.P. Act No.27
of 2004 or U.P. Act No.13 of 2005 as the
case may be and such transferees may
get such transfer validated by depositing
such fee and within such time and in
such manner as may be notified by the
State Government. In view of the above
said
findings,
the
first
question
is
decided accordingly.

(B) Specific Relief Act 1963 S-16 (c) Suit
for Specific performance-No allegationregarding
willingness-suit
can
not
succeed-any
deposition
or
piece
of
evidence without pleading can not be
looked into-held suit not maintainable.

Held: Para 8

I have examined various paragraphs of
the plaint and fail to find any such
specific averments regarding willingness
to perform the contract in any of the
paragraphs. The lower appellate Court
has completely ignored the requirements
of Section 16 (c) of the Specific Relief