Sharad Kumar Sharma, J
1. In the present writ petition, the petitioner has given challenge to the order dated 23.08.2008 as passed by the District Judge, Haridwar in Civil
Revision No.63/2006, Harprasad and another vs. Meer Hasan and another. By virtue of the said order impugned dated 23.08.2008, the order rendered
by Civil Judge (J.D.)/Judicial Magistrate Laksar, Haridwar in Civil Suit No.234/1987, Harprasad and another vs. Meer Hasan and others, had affirmed
the rejection of an amendment application paper no.117 C-1 as rejected by the Trial Court by virtue of an order dated 08.08.2006.
2. The brief facts of the case as set up by the petitioners in the present writ petition is that the petitioner is the plaintiff of a suit filed for a decree of
permanent injunction, which was filed in relation to the property, in dispute, bearing khasra No. 49 having an area of one bigha, 12 biswas, and 0
biswansi, lying in village Laksar, Tehsil Haridwar, District Haridwar, as against it, the respondent claiming a decree of mandatory injunction to the
effect that they are the owner in the possession of the suit property, which has been registered as Original Suit No. 234 of 1987, Harprasad and
another vs. Meer Hasan and others.
3. The defendant respondent nos.1 to 4 at the time when the writ petition was filed, were representing as defendant no.1 to 4 in the said suit, they
have filed their written statement and they were contesting the proceeding. After the contest being put in, the learned Trial Court had proceeded to
decree the suit in favour of the plaintiff/petitioner by the judgment dated 30.08.1999. Feeling aggrieved against the said judgment and decree dated
30.08.1999, the defendant/respondents preferred a Civil Appeal, being Civil Appeal no. 61 of 1999, Meer Hasan and others Vs. Harprasad and others.
The said appeal was allowed on 04.08.2003 and while setting aside the judgment and decree dated 30.08.1999, the suit itself was remitted back to the
Trial Court with the direction to frame an additional issue as regard to the location/identification of the disputed property and decide the suit a fresh on
merit. In compliance of the appellate Court order dated 04.08.1983, which reads as under :-
“ 234/1987
30-8-99
-
22-8-3003 â€
4. Trial Court has framed the additional issues and had issued a survey commission, who has submitted his report after taking assistance from the
Revenue Authorities i.e. i.e. Tehsildar Laksar on 23.08.2004 and thereby after considering the report, which was submitted on 23.08.2004. Both the
parties i.e. the plaintiff and respondent no.1 to 4 have filed their respective objections against the survey commission report as submitted by the
revenue Authorities, the objection was filed on 27.09.2004 and 04.09.2004 respectively by the parties.
5. In addition to filing of an objection as against the report dated 23.08.2004, the plaintiff/petitioner has also filed an application under Order 6 Rule 17
of the C.P.C. on 27.09.2004, whereby, by virtue of the amendment application, as preferred by the plaintiff/petitioner, herein, which was numbered as
paper no.177 A-1, he had sought a relief by way of an amendment making certain amendments in para 9-A with regards to the extent of property as it
has been submitted in the report by the Revenue Officials and the details pertaining to the extent of property, which was un-authorisedly occupied by
the defendant. The same reads as under :-
“9 0.0027 0
â€
6. Simultaneously, by the plaintiff/petitioner, there was an amendment sought by filing an application to the effect that a decree may be passed by way
of decree of eviction of the defendants from the property, in question, which as per the report of Survey Commissioner was held to be falling in the
share of the plaintiff. Hence, the nature of relief sought for by virtue of amendment, and in particular the relief clause sought for is quoted hereunder:
“ :-
7. The amendment application as preferred by the plaintiff was objected by the defendant/respondent to the suit by filing an objection to the said
application. One Mr. Maksood had also independently filed a suit in relation to the same property after the rejection of his impleadment application
under Order 1 Rule 10 of the CPC, claiming possession and ownership of the property lying in Khasra No.48, which was rejected by the Trial Court
on 09.02.1996. The separate suit, which was filed by the Maksood was registered as Original Suit No. 272 of 1999. The two suits, the suit preferred
by the plaintiff/petitioner i.e. Suit No.234 of 1987, Harprasad and another vs. Meer Hasan and others and the Suit No. 272 of 1999, as preferred by
Maksood for permanent injunction in relation to the property lying in Khasra no. 48 were consolidated together, but however, in the meantime the
amendment application which was preferred by the plaintiff, being paper No.177-C-1 came up for consideration before the Trial Court and the Trail
Court vide its order dated 08.08.2006 has rejected the application filed by petitioner under Order 6 Rule 17 of the C.P.C.
8. Being aggrieved against the said order, the petitioners had preferred a revision before District Judge, Haridwar, being Civil Revision No.63 of 2006,
Harprasad and another vs. Meer Hasan and others, which was considered by the Revisional Court and the Revisional Court too vide its judgment
dated 23.02.2008 had dismissed the revision and consequently has affirmed the order dated 8.08.2006 as rendered by the Trial Court rejecting the
amendment application.
9. Being aggrieved against the two orders, the petitioner has preferred the present Writ Petition by filing the same before the Registry of this Court on
22.04.2008. The said writ petition came up for consideration before this Court 23.04.2008. Notices were issued, counter affidavit was invited and
further proceedings of the suit were stayed by this Court on 23.04.2008. In compliance of the interim order, the learned counsel for the petitioner has
taken steps for serving the respondents and the respondents have filed their power as back as on 29.05.2008.
10. Even thereafter, when the writ petition was taken up on a number of occasions, particularly on 12.03.2012 i.e. almost after 4 years of filing of the
writ petition, 09.04.2012 and 16.04.2012, the time was granted to the respondents for filing the counter affidavit to the surviving respondents as well as
to the heirs of respondent no.1, who were substituted by the order dated 16.04.2012. But despite of the fact that some of the substituted heirs of
respondent No. 1 too have put in appearance on 05.06.2012 by engaging a counsel on behalf of substituted heirs of 1/3 and 1/5. The notice which was
issued to the heirs of respondent no.5 too was served by the Registry as reported on 18.12.2017 by the Registry of this Court.
11. Lastly the substitution application came up for consideration on an intimation given by the respondents pertaining to the death of respondents and
the Court having held that the counter affidavit has not been filed in compliance of the order dated 3.01.2014, the Court while considering the
information given by the learned counsel for the respondents about the death of the respondent No.5 treated it as to be an intimation under Order 22
Rule 10-A of the CPC, though despite of the fact that the respondent no.1 and 5, who had died some of the heirs of respondent no.1 have already put
in appearance and filed vakalatnma through their Advocate, even prior to the filing or allowing of the substitution application. Hence, it cannot be said
that the heirs of the deceased respondent Nos. 1 and 5, which was sought to be substituted later by filing Substitution Application no.11883 of 2017 did
not had knowledge of the pendency of the proceedings as the heirs of respondent No. 5 had already filed their vakalatnama through Mr. Tapan Singh,
Advocate as per Office report dated 18.07.2019.
12. Later on the substitution application was allowed and the notices were issued for substituting the heirs of respondent no.1 as well as that of
respondent no.5, who too also met with the said demise. Steps were taken on 06.10.2017 and there is a report of the Registry that the heirs of the
respondent no.5 had already been served, item has been delivered and none has put in appearance as would be apparent from the report of the
Registry dated 18.12.2017. Later on the remaining heirs of respondent No 1, some of whom already stood represented through Mr. Tapan Singh i.e.
particularly 1/3 and 1/5 and respondent nos.2 to 4, the vakalatnama was called for from the remaining heirs of respondent no.1 i.e. 1/1 and ½ and
¼.
There is yet another office report dated 18.07.2019 that the three unserved heirs of deceased/respondent no.1, it was reported that respondent no.1/1
and ¼ have received the notices and they have put in appearance through their counsel Mr. Tapan Singh. After proceeding up to this stage, after the
initial grant of interim order on 23.04.2008, when the proceedings of the suit itself was stayed, the respondents who have been consistently
representing in the proceedings right from 29.05.2008 had not filed their counter affidavit till date.
13. Consequently in view of the ratio as laid down by the Hon’ble Apex Court in the case of Bir Singh Chauhan vs. State of Haryana and another
as reported in 1997 SCC (L & S) 1447, in para 4 it has been held that in the light of the provisions contained under Section 114 (iii) (g) of the Indian
Evidence Act, it provides that where the counter affidavit and the production of the record by the respondents, when despite courts direction have not
been filed, the consequence which would follow would be that the pleading which has been raised by the parties in the suit before the Court below
would be deemed to be admitted. Para 4 of the said judgment reads as under:
“4. We wanted to examine the record to ascertain whether there is any substantial case against the appellant. The respondents have neither filed
counter nor produced the record. Under these circumstances, we are constrained to accept the case of the appellant that he is entitled to be
considered for promotion under the Rules. We direct the Government to consider his case for promotion on the basis of his service record within four
months from the receipt of this order. While doing so, the Government will exclude the material relating to his inspection report.â€
14. An identical view has been expressed by the Division Bench of Allahabad High Court in the case of M/S J.K. Cotton Spinning & Weaving Mills
Co. Ltd. Vs. The Collector, Kanpur and others as reported in [1999 (82) FLR 709,] wherein the Division Bench to has laid down the same preposition
in para 6 of the judgment which is quoted hereunder:
“6. In the absence of counter affidavit, the Court is left with no choice but to accept the averments made in the petition to be correct. Thus it is not
in dispute that the petitioner is a sick Company and relevant proceeding qua it under Section 16 of the Act are going on. Sri Vinay Malaviya, learned
Standing Counsel representing the respondents, very fairly, concedes that the petitioner being a sick Company as contemplated by the Act, the
protection of Section 22 of the Act would be available to it and in view of the said protection, the impugned recovery cannot be effected against the
petitioner.â€
In the said judgment it is held that in the absence of their being counter affidavit denying the averments of the writ petition, the averments made
therein has to be accepted as to be true.
15. In yet another judgment as reported in AIR 1993 SC 2592, Smt. Naseem Bano vs. State of U.P. and other,s the Hon’ble Apex Court in para
11 has held that in those contingencies in which the writ petition was filed and the counter affidavit has been called upon and the same has not been
filed, it will amount that the averments remained uncontroverted and it has laid down that the High Court should proceed to decide that matter on its
merit. Para 11 of the judgment as under:
“11. The aforesaid reply would show that on behalf of respondents 1 to 4, it was not disputed that 40 per cent posts which have to be filled up by
promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted
to L.T. grade. This shows that in the pleadings before the High Court, there was no contest on the question that the post of L.T. grade which was
sanctioned on August 29, 1977 was required to be filled up by promotion for the reason that 40 per cent posts had not been so filled. Even though
there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of
the appointment of respondent 6 by direct recruitment 40 per cent of the total number of posts in the College were not filled up by promotion as
prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents 1 to 4 in their reply to the averments made
by the appellant in the writ petition that 40 per cent of the total number of posts had not been filled by promotion, inasmuch as the said averments had
not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by respondents.â€
16. An identical situation has arisen in the instant case where the respondent after putting in appearance or having been served way back in 2008 has
not filed their counter affidavit. Hence the averment so far it confines to propriety of the amendment application is concerned and its rejection by the
court below and the cause of rejection and grounds on which it has been put to challenge would be treated to be un-denied and true and the same is to
be accepted by this Court in the light of the ratio as propounded by the Hon’ble Apex Court.
17. Even otherwise looking to the pleadings which has been sought to be amended in para 9 of the plaint and by incorporation of relief clause, it would
not have been prejudicial to the interest of the defendant/respondents because it was only an innocuous addition of the pleadings which was not
amounting to withdrawing of any admission nor it was changing the nature of the suit which was pending before the court since its institution made
way back in 1987, the amendment was necessitated due to the survey commission report dated 04.08.2003.
18. Even otherwise also, after the incorporation of the amendment application on the same being allowed, the defendant will yet again have an
opportunity to controvert its pleading by filing an additional written statement denying the pleading which are added by allowing of an amendment
application.
19. The principles which have been enunciated by the Hon’ble Apex Court for considering the amendment application, it has laid down that
invariably the amendment, which does not affect vitality of the suit or which is not changing its complexion, the same has to be reasonably considered
with a lenient view and deserves to be allowed as it would result into nothing but an effective adjudication of a lis between the parties on consideration
of their rival contention, subject to the condition that it should not be withdrawn on an admission by the parties to a lis seeking the amendment .
20. Even so much so that if the ratio as propounded in (2001) 2 SCC 472, Ragu Thilak D. John, Vs. S. Rayappan and other, sand (2001) 8 SCC 97,
Estralla Rubber Vs. Dass Estate (P) Ltd. and catena of judgment particularly emanating of the principle judgment of as reported in (2002) 7 SCC 559,
Sampath Kumar Vs. Ayyakannu and another is taken into consideration, it propounded that the amendment can be made on any stage of the
proceedings of the suit and it has gone to an extent of observing that even the amendment at the stage before the Hon’ble Apex Court is also
permissible as referred in judgment as reported (2005) 5 SCC 142, Surinder Singh Vs. Kapoor Singh (Dead) through Lrs. and others:
“The question which deserves consideration now is as to whether the application for amendment of the plaint filed by the plaintiff-respondents
should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an application. Such an application can be filed at any
stage of the proceedings and in that view of the matter an application even before this Court would be maintainable.â€
21. In view of the fact that pleading was not denied, coupled with the fact that the amendment was not prejudicial to the interest of the respondents,
this court is of the view that since the amendment was as a consequence of the survey report dated 04.08.2003, which was solicited by Court during
the pendency of the suit itself, it will not amount to changing of the complexion of the case rather it would facilitate an effective adjudication.
22. Consequently, the writ petition is allowed. The impugned orders of rejection of the amendment application is set aside. The Amendment
Application paper no.177 C-1 is allowed and the plaintiff is directed to carry out the necessary amendment within a period of two weeks from the date
of production of certified copy of the order. Since the suit itself is pending consideration since 1997, it is being directed to be disposed of within a
period of six months from the dated of production of certified copy of the order.
