ORDER S.S. Dhavan, J. - This is a Plaintiffs' second appeal from the concurrent decisions of the courts below dismissing their suit for a declaration that a sale deed executed by their uncle in favour of the two Defendants was null and void, and for an injunction to restrain the Defendants from interfering with the possession of the plots in suit. The facts are these. Sri Niwas and Ram Anui are the two main Plaintiffs in this case. They are brothers, and being minors, filed this suit under the guardianship of their grand uncle Bansidhar because their own father was dead. The Plaintiffs alleged that their grand father Sridhar had two sons, Ram Kishan the father of the Plaintiffs and Radhakishan. Ram Kishan predeceased Sridhar and after the latter's death the Plaintiffs formed a joint family with their uncle Radhakishan who is Defendant No. 3. in the suit. The Plaintiffs alleged that at the death of their grand father, they and their uncle Radhakishan were all minors. Ra dhakhhan attained majority in 1951. The Plaintiffs alleged that in 1952 Radhakishan, who had just attained majority, was prevailed upon by the two Defendants Sarwan and Ram Hait to execute a sale deed of their ancestral property. It is this transaction which is assailed as void by the Plaintiffs. They alleged that the sale was without legal necessity and for no consideration. The Plaintiffs pointed out that the property consisted of 14.55 acres of agricultural land in the district of Mathura, but the consideration specified in the sale deed was Rs. 2500/- only. They asked for a declaration that the sale deed was void and an injunction to restrain the Defendants from interfering with their possession of the land. The purchasing Defendants resisted the suit and denied that the sale was without legal necessity or consideration. They also pleaded that the suit was incompetent as the Plaintiff were not in possession of the land and had not asked for recovery of possession. 2. The trial court held that the contesting Defendants had failed to prove that the sale was for legal necessity or that they were bona fide purchaser who had made the purchase after inquiring that the sale money was required for bringing up the minors. 2. The trial court held that the contesting Defendants had failed to prove that the sale was for legal necessity or that they were bona fide purchaser who had made the purchase after inquiring that the sale money was required for bringing up the minors. But he dismissed the suit on the ground that the Plaintiffs were not in possession of the land and not entitled to any injunction because they had not asked for recovery of possession. It also held thai the relief of declaration was barred uncler Section 42 of the Specific Relief Act. An application for the amendment of plaint was made before the court but rejected. Accordingly it dismissed the suit. On appeal the learned Civil Judge did not consider the findings of the trial court that the Defendants were not bona fide purchasers and the sale was not for legal necessity, but he concurred in the rejection of the application for amendment of the plaint and held that the suit was rightly dismissed. The Plaintiffs have come to this Court in second appeal. 3. At the outset Mr. R.G. Varma learned Counsel for the Defendants Respondents stated that the land in dispute had recently been under consolidation and the consolidation proceedings had proceeded in favour of the Respondents. But he added that he had no instructions to argue the appeal on merits because the instructions were limited to the making of the aforesaid statement before the court. In my opinion, the consolidation proceedings did not affect the main dispute in this case namely, whether the sale deed in favour of the Defendants was void as it was without legal necessity and for no consideration. Section 5 of the UP Consolidation of Holdings Act provides in effect that after a village has come under consolidation "all proceedings for correction of the records and all suit for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or court whether of first instance, appeal or reference or revision shall stand stayed ". But a suit for cancellation of a sale on the ground that it was not for legal necessity or consideration is not a suit for a declaration of rights or interests over land nor for possession of land or for partition. But a suit for cancellation of a sale on the ground that it was not for legal necessity or consideration is not a suit for a declaration of rights or interests over land nor for possession of land or for partition. Therefore, even after the initiation of consolidation proceedings, this part of the suit cannot be stayed. The. proper procedure would be to decide the suit for a declaration that the sale deed is invalid and remit this decision to the consolidation proceedings for decision of other questions namely, which party is entitled to this land, and so on. If this appeal is allowed and the sale deed declared void, any decision of the consolidation authorities based on that sale deed will become ineffective and must be reconsidered. This need not affect the consolidation proceedings in the village as a whole as the only effect will be to substitute the Plaintiff for the Defendants as entitled to the consolidated plot. 4. The only question before me is whether the view of the lower appellate court that the trial court was right in rejecting the application for amendment of the plaint is vitiated on any of the grounds specified in Section 100 of the CPC which defines and limits the powers of this Court in second appeal. It is within the discretion of the trial court to permit or refuse an amendment of the plaint, though this discretion is to be exercised judicially. The appellate court has the power to consider whether the trial court's permission or refusal to amend the plaint was sound, but in deciding this question the court must consider the matter on merits and not on grounds which are irrelevant or based on no evidence. In the present case the learned Civil judge observed, "It will thus clearly appear that the Plaintiffs have not come to the court with clean hands and their conduct throughout the hearing of the suit was not bona fide''. This remark is based on no evidence whatsoever. It is true that the application for amendment was made at a late stage of the suit and after the hearing had virtually concluded, but delay is not equivalent to malafides. It can only give rise to the plea of laches against a party. This remark is based on no evidence whatsoever. It is true that the application for amendment was made at a late stage of the suit and after the hearing had virtually concluded, but delay is not equivalent to malafides. It can only give rise to the plea of laches against a party. The learned Judge's remark that the Plaintiffs had not come to the court with clean hands is not only based on no evidence, but entirely uncalled for. A party may be said to have gone to the court with unclean hands if its conduct had been inequitable or if it has deceived the court in any way. In the present case, there is nothing to suggest that the conduct of the Plaintiffs were guilty of such conduct. They made a belated prayer for amending the plaint, but delay in making a prayer is not misconduct unless it is deliberate and fraudulent. The only question before the Court in such a case is whether the delay should be condoned. If instead of deciding it the Court accuses the party of unclean conduct, its decision is based on no evidence. Then again, the learned Judge observed that the effect of the amendment, if allowed, will be to put the case to its initial stage without any fault of the Defendants. This remark was not justified by the record. The trial court had heard the suit on merits and given its finding that the sale deed was not for legal necessity or consideration, and the amendment of the plaint would not have led to a rehearing on merits by the trial court. Its only effect would have been that the lower appellate court would have considered the findings of the trial court on merits. 5. If the trial court refuses permission for adding the relief of possession and then proceeds to dismiss the suit for a declaration and injunction on the ground that the Plaintiff has not asked for possession, and the lower appellate court instead of applying its mind to the question whether the trial court's refusal to permit the amendment of the plaint was proper, confirms that refusal on grounds which are irrelevant or based on no evidence, its decision is vitiated by an error of Jaw. Therefore, the confirmation by the appellate judge of the trial court's refusal to grant permission for the amendment of the plaint cannot stand. 6. After examining the record I am of the opinion that the Plaintiffs should have been permitted to amend the plaint. They had alleged that they were in possession and they led evidence in support of their allegation. But their guardian made a statement in cross examination which the courts below had treated as an admission that the Plaintiffs were not in possession. I have read this statement which is some what vague. But even assuming that it was an admission, the trial court should have allowed the Plaintiffs to amend their plaint and add a relief for possession. It is true that the application for amendment was belated, but the delay would have caused no prejudice to the Defendants, as no fresh evidence was necessary. They could have been amply compensated by an order for costs. Reversing the decisions of the courts below I allow the application for the amendment of the plaint on payment of costs which I assess at Rs. 100/. The learned Counsel for the Plaintiff Appellants is permitted to amend his plaint within a week. After the plaint has been amended the Appellants shall pay extra court fee on the relief for possession. The record shall be sent back to the lower appellate court which shall assess the amount of court fee payable and direct the Appellants to pay this amount within three months of the direction. After the necessary court fee has been paid the lower appellate court shall rehear and decide the appeal on merits. As the findings of the trial court arc in favour of the Appellants, the appellate court should give an opportunity to the Defendants Respondents to assail these finding and to the Appellant to support them. The costs of this appeal shall abide the result of the appeal before the lower appellate court. The Appellants shall deposit the sum of Rs. 100/. as costs in the lower appellate Court.