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2017 DIGILAW 483 (PAT)

Imtyaz Ahmad v. Mohmad Mustafa

2017-04-08

V.NATH

body2017
V. Nath, J. – Heard Mr.Yogendra Prasad Sinha, learned counsel appearing for the petitioners and the learned counsel for the plaintiff-respondent. 2. The legal acceptability of the impugned order by which the learned court below has allowed the prayer for amendment as prayed by the plaintiff has been questioned in the present application under Article 227 of the Constitution of India. 3. The facts are not in dispute between the parties that the suit has been filed by the plaintiff-respondent in the year 2006 for partition. It is also admitted fact between the parties that the written statement has been filed by the defendant-petitioner on 10.04.2007. The fact is also not disputed that in the written statement in paragraph-34, the defendants have raised their claim over the suit property on the basis of a gift deed dated 21.06.1922. The plaintiff filed the petition for amendment on 01.07.2015 seeking to incorporate the averments as well as the relief against the said gift deed 21.06.1922. By the impugned order, the learned court below has allowed the prayer for amendment after imposing cost. 4. After considering the submissions and perusal of the materials on record as well as the impugned order, it is evident that the fact of filing of written statement on 10.04.2007 with specific averment with regard to the gift deed dated 21.06.1922 made by the defendants for the purpose of resisting the relief prayed by the plaintiff in the suit stands admitted in the petition for amendment (Annexure-1) .There is no statement on behalf of the plaintiff-respondent that he had no knowledge of the filing of the written statement and contents thereof. The provision of Article 59 Limitation Act bars relief which has been sought after expiry of three years from the date when the facts entitling the plaintiff to have the said relief first became known to him. In this view of the matter, it is demonstrably clear that the relief sought to be claimed by way of amendment in the suit by the plaintiff is barred by limitation. The learned court below has proceeded to allow the prayer for amendment only in view of the fact that the trial has not commenced in the suit. In this view of the matter, it is demonstrably clear that the relief sought to be claimed by way of amendment in the suit by the plaintiff is barred by limitation. The learned court below has proceeded to allow the prayer for amendment only in view of the fact that the trial has not commenced in the suit. The same may be a consideration for allowing the amendment liberally but if the amendment which is demonstrably barred by limitation is allowed then again the scope for prayer for rejection of the plaint under Order 7 Rule 11 (d) with regard to such relief will remain, resulting in elongation of the proceeding. The principle in this regard has been well settled by the apex court in the case of L.C.Hanumanthappa vs. H.B.Shivakumar, (2016)1 SCC 332 . As such, this Court is inclined to quash the impugned order. 5. Accordingly, this writ application is allowed and the impugned order is quashed.