MOHD.NAEEM Vs. GAINDAN LAL AND ANOTHER
LAWS(ALL)-2009-10-202
HIGH COURT OF ALLAHABAD
Decided on October 27,2009

Mohd.Naeem Appellant
VERSUS
Gaindan Lal Respondents

JUDGEMENT

RAJES KUMAR,J. - (1.)HEARD Smt. Rama Goel, learned counsel for the petitioner. No one appears on behalf of the respondents despite the service of notice.
(2.)BY means of present petition, the petitioner is challenging the order dated 12.9.2005 passed by the Additional District Judge, Moradabad, by which he has allowed amendment application filed by the respondents and the order dated 3.12.2005 passed by the Additional District Judge, Moradabad by which he has allowed the application for deletion of issue no. 2 and for the addition of some of the issues.
It appears that respondents filed a suit in the court of Civil Judge (Senior Division), Moradabad seeking a decree of injunction against the petitioner from executing a sale deed in respect of the property in question. The said suit was registered as Suit No. 208 of 1997. The petitioner contested the suit and filed written statement. The suit was dismissed by the trial court vide order dated 28.1.2002. Against the said order, the respondents filed the appeal before the District Judge, Moradabad which was transferred to Additional District Judge, Court No. 2 Moradabad and was registered as appeal no. 14 of 2002. During the pendency of appeal, the respondents moved an application for the amendment in the plaint and also moved an application for the addition of some of the issues and deletion of issue no. 2. By the impugned order dated 12.9.2005, the appellate authority has allowed the amendment application on the ground that amendment sought was to elaborate the facts mentioned in the plaint and no new case has been made out. The application for the deletion of issue no. 2 and the addition of some of the issues has been allowed by the order dated 3.12.2005 on the ground that to decide the real controversy it is necessary to frame some new issues.

(3.)LEARNED counsel for the petitioner submitted that the amendment application has been allowed just to delay the proceeding. She further submitted that the issue in the suit has been framed with the consent of the parties. The claim of the plaintiffs-respondents was that the property in dispute is a public property on which the Jatav Community had built a Dharmashala, therefore, the respondents have no right to sell such property. She submitted that issue and submission of the plaintiffs have been examined in detail by the Civil Judge (Senior Division), Moradabad on the basis of the evidences adduced and the same have been found incorrect, therefore, the suit has been dismissed. She submitted that a fresh issue framed by the Additional District Judge, Moradabad is based on no material and amounts to giving a fresh opportunity to the plaintiffs which is patently without jurisdiction. She further submitted that no reason has been given for framing the further issues.


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