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2005 DIGILAW 204 (PAT)

Ram Pravesh Singh v. Ram Binod Singh

2005-02-24

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioner is plaintiff of Title Suit No. 173/1992 which has been filed for declaration of title and for permanent injunction as well as other ancillary reliefs. 3. The petitioner is aggrieved by order dated 30.8.2003 passed in the aforesaid suit by which learned Subordinate Judge-IV,. Begusarai rejected his petition for amendment of plaint. 4. From the arguments of the learned counsel for the petitioner it is quite clear that even the issues have not yet been framed in the suit and the plaintiff wants extensive amendment of his plaint. All the amendments sought by the plaintiff are with respect to the factual aspect of the matter and except relief (D) all the other reliefs sought to be amended are consequent to the amendments of fact sought by the plaintiff. So far the addition of relief (D) is concerned the plaintiff wants to get the sale deed dated 26.12.1989, executed by Ram Binod Singh (defendant No. 1) transferring to Bhagat Singh in the name of his sons (defendant Nos. 7 to 11), to be declared as void. The learned counsel for the petitioner submits that the said sale-deed is ab initio void and hence the said amendment should also have been allowed according to the recent decision of the Hon ble Supreme Court in the case of Pankaja V/s. Yellappa, reported in, 2004 (5) Supreme Court 772 in which it was held that there was no absolute rule that in every case where relief is barred because of limitation, amendment should not be allowed. Hence, he claims that all the amendments sought should have been allowed by, the learned Court below. 5. On the other hand, learned counsel for defendant-opposite party submits that even according to the claim of the plaintiff the said sale-deed was dated 26.12.1989 regarding which the plaintiff had knowledge on 16.5.1990 and on its basis the plaintiff was dispossessed on 18.11.1992. Hence, he claims that the relief sought to be added for declaring it void vide amendment petition dated 22.9.1998 is clearly barred by law of limitation and it cannot be legally allowed. Hence, he claims that the relief sought to be added for declaring it void vide amendment petition dated 22.9.1998 is clearly barred by law of limitation and it cannot be legally allowed. He further submits that the plaintiff wants to completely overhaul his pleading which cannot be allowed in view of various decisions of this Court as well as of the Hon ble Supreme Court, specially when the defendants had already filed their written statement. After hearing learned counsel for the parties and after perusing the materials on record there is no doubt that the plaintiff wants extensive amendment but the Hon ble Apex Court in its decision in case of Prem Bakhshi and Ors. V/s. Dharam Dev and Ors., reported in, 2002 (2) PLJR (SC) 187, has held as follows :- - "It is almost inconceivable how mere amendments of pleadings could possible cause failure of Justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of Justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of Justice or irreparable injury to any party". 6. In the aforesaid circumstances there was no occasion for the learned Lower Court to refuse the amendment, except addition of relief (D), as sought by the plaintiff. Since the issues have not yet been framed in the suit the defendants will have sufficient opportunity to amend their pleadings and contest the claim of the plaintiff by their own evidence. 7. So far the addition of relief (D) in the plaint is concerned it has to be noted that the Hon ble Supreme Court in case of Pankaja (supra) has specifically held as follows :- - "The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of Justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case". 8. In the instant case the specific claim of the plaintiff is that the aforementioned sale-deed dated 26.12.1989 was ab initio void, hence even according to the claim of the plaintiff there was no need for getting it to be declared as void. In the aforesaid circumstances the addition of relief (D) for the said purpose is frivolous even according to the plaintiffs case. If the learned Court below after considering the pleadings and evidence of the parties comes to a conclusion/finding that the said sale-deed is ab initio void the Court has merely to ignore the said document without giving any benefit of the said document to the party who is basing its claim on that deed. Hence after judicious evaluation of the facts and circumstances in which the said amendment is sought, it is quite apparent that the said amendment does not subserves the ultimate cause of Justice hence amendments sought by the plaintiff regarding addition of relief (D) cannot be allowed and has been rightly rejected by the learned Court below. 9. In the aforesaid circumstances the impugned order is partly set aside as mentioned above and the learned Lower Court is directed to permit the plaintiff petitioner to amend his plaint according to the amendment sought except addition of relief (D). This Civil Revision is thus allowed in part.