IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32 (2) (b)) Description of Case W.P. No. 738 of (M/S) 2003, decided on 02.9.2003 Kali Ram & others. ------------- Petitioner Versus Addl. District Judge, Haridwar & others. ----- Respondents A.F.R. (Approved for reporting) Not approved for reporting Date 02-9-2003 Initials of Judge Note – Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition No.738(M/S) 2003 CIVIL SIDE: Kali Ram & others. .….. Petitioners. Versus. Addl. District Judge, Hardwar & others. ..... Respondents. Hon’ble Rajesh Tandon.J. 02.09.2003: This writ petition has been filed by the plaintiff/petitioner challenging the order passed by the Additional District Judge dated 30th July 2003 by which the restoration has been alThe facts, in brief, are that a suit No.35 of 1995 was filed by the plaintiff/respondent praying for a decree of partition in respect of the half share as well as possession in respect thereof. The petitioner in his plaint has claimed half share in respect of the property on the ground that on 10th August, 1970 both the plaintiff and defendant purchased the same with their own funds and since than both the parties are continuing in possession in respect of the property A as well as B. During the pendency of the case of the petitioner filed an application under order VI rule 17 CPC praying for the amendment of the plaint on the ground that the wanted to bring on the record the scale map and during the course of the proceedings some changes have been made in the boundaries and, as such, the amendment was required to the following effect: orZeku uD”kk okni= dyetn djus fn;k tkus vkSkj bl izkFkZuk i= ds layXu uD”ks dks okn i= dk Hkkx cuk;k tk;sA fooj.k lEifRr in c esa ikapoh ,oa NVh ykbZu esa gnwnos tgk iwjc esa “kCn vk;k gS mlds ckn “kCn jkLrk izkbZosV oknh ckngw dyetn djus fn;k tk;sA gnwn ntZ lEifRr in c lsa vkBoh ykbZu esa tgka if”pe dk gnwntkZ fy[kk gS esa”kCn tqt esa jkeiky iq= fo”kEcj fy[kk gS mls dyetn dj fn;k tkosA okn i= ds iSjk ua0 6 esa igyh ykbZu esa “kCn ;g fd ds ckn o “kCn iwjc ls igys”kCn fookfnr lEifRr in c ds vUnj gh c<k;k tkosA Objections were filed by the defendant to the effect that the facts were in the knowledge of the plaintiff and, as such, the amendment cannot be allowed. The trial court vide its order dated 31.01.2001 has rejected the amendment. Aggrieved by the aforesaid order the plaintiff went in revision. The revisional court vide its order dated 30.07.2003 allowed the revision and has recorded a finding that the amendment will not change the nature of the suit. The revisional court has also held that merely because of the fact that there was delay in applying the amendment that cannot be a ground for refusing the amendment. The present writ petition has been filed by the defendant against the order allowing the amendment. I have heard Sri Lokpal Singh Advocate at great length and, in my opinion, merely allowing of the amendment can not be amenable to writ jurisdiction under Article 226 and 227 of the Constitution of India, since allowing the amendment does not, in any way affect the rights of the parties. The merit of the case in accordance with the amendment has still to be proved by the plaintiff. The amendment only facilitate the parties to clear the pleadings. The jurisdiction under Article 226/227, therefore cannot be exercised so as to stop the litigant from bringing the true nature ‘list’ of way of amendment in the pleadings. In 1971 Supreme Court page 361 Mohd. Mustafa Vs Abbu Bakar and others the Apex court has taken a view that the court should not very technical in the matter of amendment. The observations are quoted below: “In our opinion the High court took a highly technical view of the matter. On the facts and circumstances of this case, the High Court should have allowed the amendment application moved by the appellant on April 1,1966. We think that in the interest of justice, we should now allow that application and permit the appellant to amend his written statement.” In 22001(8) S.C.C.page 97 in Estralla Rubber Vs Dass Estate (P) Ltd the Apex court has relied upon the earlier judgment of their Lordships in B.K.Narain Pillai Vs Parmeshwaran Pillai and has observed that the amendment of pleadings under Order VI rule 17 is to be allowed if such the amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings. It has been held in AIR 2000 Supreme Court 931 Mohan Amba Prasad Agnihotri and others Verses Bhaskar Balwant that High Court while acting under Article 226/227 of Constitution of India can not exercise its powers as appellate court for substitute its own judgment in place of that of the subordinate court and, as such, no interference can be called under Article 226/227 of the Constitution of India so as to disturb the order allowing amendment by the revisional court. The observations are quoted below: - “On the first submission of Mr.Lalit, it will suffice to observe that it is settled law that the jurisdiction of the High Court under Article 227 is not appellate but supervisory. It cannot interfere with a finding of fact recorded by lower Court/tribunal unless there is no evidence to support the finding of the finding is perverse.” Counsel for the petitioner has prayed that he may be allowed to file additional written statement on the amended paragraphs. In view of the fact that the plaint has been amended the defendant will have an opportunity of filing additional written statement in reply to the amendment, which has been made. With these observations the writ petition is dismissed. The trial court shall expedite the disposal of the suit as the suit relates of the year 1995 after affording an opportunity to the defendant to file additional written statement in pursuance of the amendment sought by the plaintiff. 02.09.2003: (Rajesh Tandon, J.) Negi.