# Vipin Kumar v. D.J. Gonda & Ors

- **Citation:** (2020) 1 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Misc. Single No. 1540 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-kumar-v-d-j-gonda-ors-45685
- **Pages:** 5

## Headnote

A. Code of Civil Procedure, 1908 - Order 6
Rule 17 - Additional Statement filed by
Respondent no.1 after filing of joint
Written statement of Respondent no.1
and 2 -due to changed circumstancesaccepted by the Civil Judge-order of Civil
Judge challenged-An application u/order
6 Rule 17 can be moved at any stage of
proceedings-to bring evidences which
were not within the knowledge of the
parties-when pleadings were filed.

Held, it is clearly borne out that application
under Order 6 Rule 17 CPC can be moved at
any stage of the proceedings, only such
evidence can be brought on record which are
not within the knowledge of the parties at the
time when the pleadings were filed. (Para 14)

Writ Petition dismissed. (E-9)

Cases cited: -

## Text

1 All. Vipin Kumar Vs. D.J. Gonda & Ors.
365

(22) On its perusal, it is well established
that in a habeas corpus petition, for custody of
the minor child, the considerable point was that
whether detention by parents or others is illegal
or without authority of law, wherein detention
of a minor by a person, who is not entitled to
his legal custody was held to be illegal
detention and was in regard to the claim setup
by a father of a girl child against sister of the
mother, who had died due to illness. The above
referred judgment is distinguishable and does
not
attract
to
the
present
facts
and
circumstances of the case.

(23) Here in the present case, the
grand mother who is aged about 72 years
is claiming custody of the minor child
from the biological mother, who is
managing affairs by running a beauty
parlour
to
provide
comfort,
health,
education and other developments of the
child required for future developments.

(24) In the opinion of the Court, the
custody of the child is in right hands and
does not require any interference in the
present habeas corpus petition.

(25) In view of the observation made
above, there is no merit in the present
habeas corpus petition and the same is
hereby dismissed.

(26) However, it is provided that in
case the grand mother of the minor child
Master Vaibhav Shukla wants to meet her
grand son, the respondent No.3 shall
permit and provide adequate atmosphere
to meet her grand son on 3rd Sunday of
every month and will not create any
hindrance in the meeting.
----------
(2020)1ILR 366

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 1540 of 2020

Vipin Kumar ...Petitioner
Versus
D.J. Gonda & Ors. ...Respondents

Counsel for the Petitioner:
Madan Gopal Tripathi, Amit Kumar Singh,
Atma Ram Verma

Counsel for the Respondents:

A. Code of Civil Procedure, 1908 - Order 6
Rule 17 - Additional Statement filed by
Respondent no.1 after filing of joint
Written statement of Respondent no.1
and 2 -due to changed circumstancesaccepted by the Civil Judge-order of Civil
Judge challenged-An application u/order
6 Rule 17 can be moved at any stage of
proceedings-to bring evidences which
were not within the knowledge of the
parties-when pleadings were filed.

Held, it is clearly borne out that application
under Order 6 Rule 17 CPC can be moved at
any stage of the proceedings, only such
evidence can be brought on record which are
not within the knowledge of the parties at the
time when the pleadings were filed. (Para 14)

Writ Petition dismissed. (E-9)

Cases cited: -

1. Estralla Rubber Vs. Dass Estate (P) Ltd,
(2001) 8 Supreme Court Cases 97

(Delivered by Hon'ble Alok Mathur, J.)

1. At the very outset learned counsel
for the petitioner prays for deletion of
respondents No.1 and 2. The prayer is
allowed and the parties are renumbered
366 INDIAN LAW REPORTS ALLAHABAD SERIES
and respondent No.s 3 and 4 be read as
respondent No.1 and 2.

2. Heard Sri M. G. Tripathi, learned
counsel for the petitioner.

3. In the light of the proposed order
notice to respondents is dispensed with.

4. Petitioner has approached this
court
challenging
the
order
dated
23.10.2019 passed by District Judge,
Gonda in Civil Revision No.20 of 2019
wherein the challenge was made by the
petitioner to the order of Civil Judge
(Senior Division) dated 11.3.2019 thereby
rejecting
the
objection
against
the
application for taking on record the written
statement filed by respondent No.1.

5. The facts in brief of the present
controversy are that petitioner and respondent
No.2 are real brothers as father of petitioner
and respondent No.2, namely, Kishori Lal son
of Rameshwar Prasad was married with one
namely Smt. Cheelha Devi and out of the said
wedlock three sons, namely, Ram Khelawan,
Shyam Lal and Chhottan Lal were born. After
the demise of Smt. Cheelha Devi Sri Kishori
Lal again married with Chhammi Devi and out
of the said wedlock two sons namely Krishna
Gopal and Harihar were born. It has further
been submitted that the sons born out of the
wedlock of Smt. Cheelha Devi settled
themselves in the life time of Kishori Lal and
further that one son, namely, Krishna Gopal
passed away during life time of Kishori Lal.
The father of the petitioner divided the share of
not only the petitioner, opposite party No.2 and
other brothers by means of a will deed
executed by father of the petitioner.

6. It has further been submitted that
father of the petitioner executed another
will deed on 20.1.1982 jointly in favour of
the petitioner, opposite party No.2 and
Smt. Chhammi Devi (mother of the
petitioner) providing only usefructory
rights to the mother of the petitioner and, a
such, she was not entitled to transfer her
share. It has further been submitted that
Smt. Chhammi Devi had herself executed
a will deed in favour of the petitioner and
opposite party No.2. The controversy in
the present case has arisen out of the fact
that opposite party No.2 got an agreement
executed on 20.7.1988 by Smt. Chhammi
Devi-his mother in his favour. All these
facts was never disclosed to the petitioner.
Petitioner on coming to know of the said
agreement dated 20.7.1988 filed a suit
bearing No.472 of 2004. On receiving
summons opposite party No.s 1 and 2
jointly
filed
written
statement
on
20.12.2005 in opposition to the suit filed
by the petitioner.

7. Opposite party No.1 subsequently
moved an application seeking leave of the
court to file additional written statement in
January, 2016 against which petitioner has
filed his objection along with an affidavit
on 28.9.2016. The objections of the
petitioner were that the only reason behind
moving additional written statement was
only to prolong the matter and keeping the
same pending. In the meanwhile, the
petitioner also approached this Court by
filing a writ petition seeking direction
from this Court for expeditious decision of
the suit and by means of the order dated
21.1.2019 this Court directed the trial
court to make an earnest endeavor to
decide the suit within a period of one year
if there is no other legal impediment. The
application for filing of the additional
written statement was considered by the
Civil Judge (Senor Division), Gonda and
by means of the order dated 11.3.2019 the
same
was
allowed.
The
application
1 All. Vipin Kumar Vs. D.J. Gonda & Ors.
367
preferred by the respondents had stated
that the earlier written statement was filed
when both of them were on good terms
and relationship and subsequently, the
relations got sour. There was material
change
in
the
circumstances
which
necessitated
filing
of
the
aforesaid
additional written statement. All these
grounds was duly accepted by the Civil
Judge (Senior Division), Gonda and the
additional statement was taken on record.

8. The petitioner being aggrieved by the
order dated 11.3.2019 preferred a revision before
learned District Judge which was registered as
Revision No.20 of 2019. Before the District
Judge, the petitioner canvased all his grievance
and submitted that as per the provisions of Order
6, Rule 17 of CPC at such advanced stage of
proceedings application for taking additional
written statement could not be allowed.

9. While rejecting the revision filed
by the petitioner learned District Judge has
taken notice of this fact that the
relationship between respondent No.1 and
2 has changed materially. When earlier
written statement was filed by respondent
No.s 1 and 2 they were living jointly and
subsequently their relationship became
strained, therefore, to protect their interest
it was necessary for respondent No.1 to
file
additional
statement
and
these
developments having come into existence
subsequent to filing the first written
statement and it was necessary to bring
this affidavit on record. The petitioner
being aggrieved by the acceptance of
additional
written
submissions
has
preferred the instant writ petition.

10. To decide this controversy it is
relevant to go through the provisions of
Order 6 Rule 17 of CPC amended which
reads as under:-

"17. Amendment of pleadings- The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such terms
as may be just, and all such amendment shall
be made as may be necessary for the purpose
of determining
the real questions
in
controversy between the parties.

Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the court comes to the
conclusion that in spite of due diligence, the
party could not have raised the matter before
the commencement of trial."

11. A perusal of the said provision
clearly indicate that the court at any stage
of the proceedings can allow either party
to alter or amend his pleadings in such
manner and on such terms as may be just,
and all such amendments shall be made as
may be necessary for the purpose of of
determining
the
real
questions
in
controversy between the parties.

12. The proviso provides that any
application
for
amendment
shall
be
allowed after the trial has commenced,
unless the court comes to the conclusion
that in spite of due diligence the parties
could not have raised the matter before the
commencement of the trial.

13. It will be relevant to consider the
judgment of Hon'ble Supreme Court in the
case of Estralla Rubber Vs. Dass Estate (P)
Ltd, (2001) 8 Supreme Court Cases 97 in
which in para 8 it has been held as under:-

"It is fairly settled in law that the
amendment of pleadings under Order 6,
Rule 17 is to be allowed if such

"It is fairly settled in law that the
amendment of pleadings under Order 6,
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 17 is to be allowed if such an
amendment is required for proper and
effective
adjudication
of
controversy
between
the
parties
and
to
avoid
multiplicity
of
judicial
proceedings,
subject to certain conditions such as
allowing amendment should not result in
injustice to the other side; normally a
clear admission made conferring certain
right on a plaintiff is not allowed to be
withdrawn by way of amendment by a
defendant resulting in prejudice to such a
right of plaintiff, depending on facts and
circumstances of a given case. In certain
situations a time barred claim cannot be
allowed to be raised by proposing an
amendment to take away valuable accrued
right of a party. However, mere delay in
making an amendment application itself is
not enough to refuse amendment, as the
delay can be compensated in terms of
money. Amendment is to be allowed when
it does not cost serious prejudice to the
opposite side. This Court in recent
judgment in B.K. Narayana Pillai vs.
Parameswaran Pillai and another [(2000)
1 SCC 712], after referring to number of
decisions, in para 3 has stated, thus: -

"3. The purpose and object of
Order 6 Rule 17 CPC is to allow either
party to alter or amend his pleadings in
such manner and on such terms as may be
just.

The
power
to
allow
the
amendment is wide and can be exercised
at any stage of the proceedings in the
interests of justice on the basis of
guidelines laid down by various High
Courts and this Court. It is true that the
amendment cannot be claimed as a matter
of right and under all circumstances. But it
is equally true that the courts while
deciding such prayers should not adopt a
hyper
technical
approach.
Liberal
approach should be the general rule
particularly in cases where the other side
can be compensated with the costs.
Technicalities of law should not be
permitted to hamper the courts in the
administration of justice between the
parties. Amendments are allowed in the
pleadings
to
avoid
uncalled-for
multiplicity of litigation."

In para 4 of the same judgment
this Court has quoted the following
passage from the judgment in A.K. Gupta
and Sons Ltd. Vs. Damodar Vally
Corporation [1966 (1) SCR 796]: -

"The general rule, no doubt, is
that a party is not allowed by amendment
to set up a new case or a new cause of
action particularly when a suit on new
case or cause of action is barred: Weldon
v. Neal [(1887) 19 QBD 394 : 56 LJ QB
621]. But it is also well recognized that
where the amendment does not constitute
the addition of a new cause of action or
raise a different case, but amounts to no
more than a different or additional
approach
to
the
same
facts,
the
amendment will be allowed even after the
expiry of the statutory period of limitation:
See Charan Das v. Amir Khan [AIR 1921
PC 50 : ILR 48 Cal 110] and L.J. Leach
and Co. Ltd. V.

Jardine Skinner and Co. [AIR
1957 SC 357 :

1957 SCR 438]."

This Court in the same judgment
further observed that the principles
applicable to the amendment of the plaint
are equally applicable to the amendment
of the written statement and that the courts
are more generous in allowing amendment
of the written statement as the question of
prejudice is less likely to operate in that
event. It is further stated that the defendant
has a right to take alternative plea in
defence which, however, is subject to an
exception that by the proposed amendment
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
369
the other side should not be subjected to
serious injustice and that any admission
made in favour of the plaintiff conferring
right on him is not withdrawn."

14. In the light of the above
discussions it is clearly borne out that
application under Order 6 Rule 17 CPC
can be moved at any stage of the
proceedings, only such evidence can be
brought on record which are not within the
knowledge of the parties at the time when
the pleadings were filed. It is needless to
say that first written statement was brought
on record when the said relationship
between respondent No.1 and 2, who had
jointly filed the same, was quite good, but
subsequently
the
relationship
having
become strained which was a subsequent
development and this fact not having been
denied by the petitioner, it cannot be said
that this fact could have been brought on
record at an earlier point of time.

15. In view of the observations in the
above mentioned judgment of Hon'ble
Supreme Court and the discussions made
hereinabove, there is no error in exercise
of the discretion in accepting the written
statement by the Civil Judge (Senior
Division), Gonda, who has considered all
the facts and circumstances necessary in
allowing the application. The District
Judge has also considered all these
circumstances and arguments raised by the
petitioner and no infirmity could be
pointed out in any of the facts or points
decided by him. I do not find any infirmity
in the order of learned District Judge. The
petition is without merits and is hereby
dismissed.

16. Needles to say that after
acceptance of the additional written
statement, learned Civil Judge (Senior
Division), Gonda shall proceed to decide
the revision expeditiously and shall make
earnest endeavor to decide the same within
a period of one year from the date a
certified copy of this order is placed before
him, if there is no other legal impediment.

17. The petition is dismissed.
----------
(2020)1ILR 368

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Misc. Single No. 3225 of 2008
connected with
 Misc. Single No. 3271 of 2008 and Misc Single
No. 3272 of 2008

M/S Ganesh Grain Store ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shafiq Mirza

Counsel for the Respondents:
C.S.C., N.C. Mehrotra

A. U.P. Krishi Utpadan Mandi Samiti Act,
1964 - Section 32 - Power of Revision
delegated to Director-Revision preferred
to
Director-transferred
to
Deputy
Director-Power
of
Revision
when
delegated
to
Director-it
become
a
function to be performed by himtherefore, Director can authorize any
officer to perform his functions including
delegated powers u/s 32.

Held, The power of Revision when delegated
to Director by virtue of Section 33 becomes a
function to be performed by Director under Act,
1964 and, therefore, Director can authorize any
other Officer to perform all or any of his
functions under Act, 1964 which includes