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