IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1122 of 2009 (M/S) 1. Mahant Ramanand Puri Disciple of Guru Niranjan Dev R/o Mansa Devi Dharamshala Niranjani Akhada Bhag, Haridwar Tehsil and District Haridwar. 2. Rajendra Giri Goswami S/o Sri Ram Snehi Giri R/o Mansa Devi Mandir Haridwar, Tehsil and District Haridwar. ……Petitioners. Versus 1. Panchayati Akhada Sri Niranjani Mayapur Haridwar, through its Secretary Trayambak Bharti Disciple of Guru Niranjan Dev, R/o Niranjani Akhada Mayapur, Haridwar, Tehsil & District Haridwar. 2. Mahant Trayambak Bharti Disciple of Guru Niranjan Dev, Ext. Officio Secretary Panchayati Akhada Sri Niranjani Mayapur, Haridwar R/o Niranjani Akhada, Mayapur Haridwar, Tehsil & District Haridwar. …….Respondents/plaintiffs. 3. Pt. Amba Dutt Joshi S/o Sri Purnanand Joshi R/o Mansa Devi Mandir, Haridwar Tehsil & District Haridwar. ………………..Respondent/defendant No. 3. Shri Sharad Sharma, Sr. Advocate assisted by Shri Narendra Bali, counsel for the petitioner. Shri Dharmendra Barthwal, Advocate for the respondents No. 1 and 2. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of Constitution of India, the petitioner has 2 challenged order dated 02.03.2009, passed by the trial court (Civil Judge, Sr. Div., Haridwar) in Original Suit No. 93 of 2007, whereby said court had allowed the amendment application 38 A 1. 2. Heard learned counsel for the parties and perused the papers on record. 4. Brief facts of the case are that plaintiff/respondents No. 1 and 2, instituted suit No. 93 of 2007, against the petitioners (defendants), seeking injunction restraining them from interfering in the management of the affairs of Shri Mansa Devi Mandir Trust, Haridwar. A further mandamus has been sought directing the defendant No. 1 to hand over the record (registers etc.) to plaintiff No. 2. It is alleged in the original plaint that the defendants’ tenure of six years as Managing Trustee, has expired on 28.02.2007. It is also stated that Saraswati Devi, the original owner of the property, executed will dated 01.07.1963, appointing Laxmi Narayan Giri, as Mahant by creating Trust and it was provided that the Secretary of Akhara, would be Managing Trustee of the property. It appears that the suit was instituted on 16.04.2007, and an amendment application 38A, was moved three months thereafter on 23.07.2007, wherein not only para-2 and para-4 of the 3 plaint but also some other paras and relief No. 1 were also sought to be deleted and fresh reliefs and fresh facts were sought to be pleaded in the plaint. The defendants objected to the proposed amendment on the ground that the plaintiffs cannot be allowed to withdraw the admissions, made by them in the original plaint. The trial court vide impugned order dated 02.03.2009, allowed the amendment application. The revision filed by defendants against said order dismissed by the District Judge, as not maintainable. Hence this petition. 5. Learned counsel for the petitioners read out the paragraphs of the plaint and the amendment application, before this Court, to show that the admissions made in para-2 and para-4 of the plaint are being withdrawn by the plaintiffs, which they cannot be permitted to do. Perusal of the plaint and the amendment application, shows that the plaint is 1/3rd of the amendment, sought to be incorporated. Perusal of the impugned order shows that the trial court has not given any finding as to whether the amendment sought amounts to withdrawal of admission or not. The revisional court has dismissed the revision on the technical ground that the revision is not maintainable against the order passed on the amendment application. 4 6. Having considered the submissions of learned counsel for the parties, and after going through the impugned order dated 02.03.2009, passed by the trial court, this Court is of the view that the trial court has erred in law in allowing application 38A without discussing as to whether by amendment, sought to be incorporated in the plaint (which is three times to the original plaint and by which not only the original paras of the plaint but also relief clause is sought to be changed), amounts to withdrawal of the admissions, made by the plaintiffs or not. In the circumstances, this writ petition is disposed of with the following directions:- 1. The impugned order dated 02.03.2009, passed by the trial court (Civil Judge, Sr. Div., Haridwar) in Original Suit No. 93 of 2007, is set aside. 2. The trial court is directed to decide the application 38A afresh after discussing as to whether by incorporating the amendment, admissions made by the plaintiff would stand withdrawn or not. Accordingly, the writ petition stands disposed of. (Stay application No. 6052 of 2009, also stands disposed of). (Prafulla C. Pant, J.) Dt:07.08.2009 Sweta 5 6 7 8 9 10