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1997 DIGILAW 234 (RAJ)

Om Prakash Sharma v. Prayag Narayan

1997-02-06

SHIV KUMAR SHARMA

body1997
Honble SHARMA, J.–Application filed under Order 6 Rule 17 read with Order 1 Rule 10 CPC by the plaintiff non-petitioner Prayag Narain was allowed by the Trial Court vide order dated January 8, 1997. Against the said order present action offiling this revision has been resorted to. (2). It appears from the order that amendment has been sought by the plaintiff in connection with the sale-deed alleged to have been executed on January 27, 1992, in favour of Smt. Krishna Sharma. Application for amending the plaint was filed on February 14, 1996, more than four years after execution of alleged saledeed.Copy of an application, dated January 31, 1992 has been placed before me by the learned counsel Mr. Upadhyay, showing that the defendant Omprakash Sharma already apprised the court as well as the plaintiff with regard to the execution of alleged sale-deed on January 27, 1992. (3). It is legally settled that amendment of the plaint cannot be allowed to getover bar of limitation. In Gora Bai vs. Gangabai Ram Chandra Panwar (1) it has been indicated that amendment of the plaint to introduce a new and inconsistent case to get over bar of limitation should have been allowed (sic). (4). The court below in this case overlooking the provision contained in Limitation Act, allowed the amendment and therefore, committed a jurisdictional error. If the order is allowed to stand, it would occasions failure of justice. If during the pendency of a suit nature of disputed property is changed, such change is hit by Section 52 of the Transfer of Property Act. In the instant case also doctrine of lispendent is applicable, therefore, even if the plaint is not amended in the light of alleged sale-deed, the rights of the parties are not affected. (5). Consequently, I allow this revision and set aside the impugned order. No costs.