IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1265 of 2002 (M/S) Sunil Kumar Sharma S/o Late Pt. Veerbhan Sharma R/o Sharvannath Ghat, Haridwar Pargana Jwalapur Tehsil & District Haridwar. ….…Petitioner. Versus Smt. Rani Devi W/o Late Sharada Charan R/o Mohalla Holy Kankhal Pargana Jwalapur Tehsil & District Haridwar & others. .……….Respondents. Shri Arvind Vashistha, Advocate for the plaintiff/petitioner. Shri Pankaj Miglani, Advocate for respondents No. 1 to 4. Shri Lok Pal Singh, Advocate for other respondents. Hon’ble Prafulla C. Pant, J. This writ petition, moved under Article 226 read with Article 227 of Constitution of India, is directed against the order dated 12.12.2002, passed by IVth Fast Track Court/Additional District Judge, Haridwar, in Civil Revision No. 53 of 2001, whereby said court has allowed the revision and set aside the rejection of the amendment application by the trial court in suit No. 193 of 1987, and further ordered that the amendment application, is allowed. 2 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts of the case are that a suit for partition was presented on 17.10.1980, before the trial court, which is registered as suit No. 193 of 1987, on 21.07.1987. Parties to the suit litigated and finally in the year 1999, after the arguments, the suit was reserved for judgment. At that stage, defendants No. 1 to 4, appear to have moved application 388A on 07.05.1999, for amendment in the written statement, which was opposed by the plaintiff and other defendants. 4. The trial court after hearing the parties, dismissed the amendment application 388 A on the ground that not only the amendment sought is highly belated but also if such amendment is allowed, the defendants No. 1 to 4 would be retreating from the admission, made by them in the written statement. Aggrieved by said order dated 09.09.1999, civil revision No. 53 of 2001, was filed by defendants No. 1 to 4. The revisional court, after hearing the parties, allowed the revision on 12.12.2002. The revisional court, set aside the order dated 09.09.1999, and allowed the amendment application. Hence this petition by the plaintiff. 5. The first ground on which the order of the revisional court is questioned before this Court in 3 the writ petition is that in Shiv Shakti Co- operative Housing Society Vs. Swaraj Developers (2003) 6 Supreme Court Cases, Pg. 659, the Apex Court, while interpreting the amended Section 115 of Code of Civil Procedure, 1908, has observed that if a provision of statute is unconditionally omitted without a saving clause in favour of the pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. However, learned counsel for respondents No. 1 to 4, drew attention of this Court to concluding sentence of para-33 of the above mentioned referred case, and argued that the pending proceedings remained unaffected. Having weighed the contention of the learned counsel for the parties, this Court finds that the concluding sentence, mentioned in para-33 cannot be read in isolation and it has to be read with para-32 and other observations, made in para-33. In other words, principle of law, laid down by the Apex Court, while interpreting the amendment, made in Section 115 of Code of Civil Procedure, 1908, vide Act, No. 46 of 1999, w.e.f. 01.07.2002, is that if a provision of statute is unconditionally omitted without a saving clause in favour of the pending proceedings, all actions must stop where the omissions finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it 4 afterwards. The Apex Court while interpreting the amendment in Section 115 has also discussed the provisions contained in Section 6 of General Clauses Act, 1897. In the circumstances, in view of the principle of law, laid down by the Apex Court in Shiv Shakti Housing Society Case (Supra), this Court is of the view that the revisional court has erred in law by allowing the revision after the amendment had come into force on 01.07.2002. 6. Apart from this, this Court agrees with the trial court that the amendment sought in the suit was not bonafide, as the parties to the suit were relatives and they knew that what property is being sought to be transferred by the plaintiff. After litigating for 12 years, at the stage of judgment, the amendment was sought with regard to which the trial court found that if the amendment is allowed, it would amount to permitting the defendants to retreat from the admission, already made by them. Therefore, otherwise also, the revisional court has erred in law in allowing the revision, as neither the trial court has exercised a jurisdiction, which is not vested in it by law, nor it had failed to exercise jurisdiction so vested nor it had acted in exercise of jurisdiction illegally or with material irregularity. 7. For the reasons, as discussed above, this writ petition is allowed. The impugned order dated 12.12.2002, passed by IVth Fast Track Court /Additional District Judge, Haridwar, in Civil 5 Revision No. 53 of 2001, is quashed. The order dated 09.09.1999, passed by the trial court, rejecting the application 388A, moved by defendants No. 1 to 4, in suit No. 193 of 1987, is restored. (Prafulla C. Pant, J.) Dt:16.11.2009 Sweta 6 7 8 9 10 11