High Court Madhya Pradesh High Court

Om Prakash Balwani vs Biharilal on 6 September, 2010

Madhya Pradesh High Court
Om Prakash Balwani vs Biharilal on 6 September, 2010
                           W.P. No. 3317/2010

06.09.2010

       Shri Ashok Lalwani, learned counsel for the petitioners.

       Shri R.N. Tiwari, learned counsel for the respondent No.1.

This petition is directed against an order dated 18.1.2010 by

which an application filed by the petitioners seeking amendment in the

written statement was disallowed.

Learned counsel for the petitioners submitted that so far as the

amendment by which the petitioners clarified the positions of two sale-

deeds is concerned, the trial Court erred in rejecting the application.

The aforesaid amendment was necessary for the just decision of the

case. So far as second part of the amendment which is contained in

para 2 of the application is concerned, it is submitted by Shri Lalwani

that this amendment was also necessary as the petitioners are

asserting their claim of adverse possession through their predecessor-

in-title from whom they purchased the property. Stating aforesaid, it

was submitted by Shri Lalwani that trial Court committed an error in

rejecting the application seeking amendment in the written statement.

Learned counsel appearing for the plaintiff-respondent No.1

supported the impugned order and submitted that the trial Court has

rightly rejected the application filed by the petitioners.

From perusal of the proposed amendment as prayed in

application Annexure-P-5 dated 5.11.2009 we find that first part of the
amendment, which is contained in para 1 of the application, appears to

be necessary for just decision of the case. In the amendment the

petitioners have clarified dimensions of the property which was subject-

matter of two sale-deeds. It appears that this amendment will also be

necessary to the trial Court to decide the controversy between the

parties.

In view of the aforesaid, we find that the trial Court erred in

rejecting this part of the amendment application. So far as second part

of the aspplication is concerned, we find that in para 2 of the

application, petitioners have claimed title by way of adverse possession

through their predecessor-in-title from whom the petitioners have

purchased the property in the year 2004. This plea shall change the

nature of the defence, while the matter was remanded by the Appellate

Court. The trial Court rightly rejected this part of the amendment.

This petition is allowed in part. The amendment as prayed in

para 1 of the application dated 5.11.2009 is allowed, but in so far as

proposed amendment as contained in para 2 of the application is

concerned, rejection order is affirmed.

With the aforesaid, this petition is allowed in part with no order
as to costs.

     (Krishn Kumar Lahoti)                      (J.K. Maheshwari)
          Judge                                      Judge

ap