Arun Kumar vs Santosh Jain and Others

L.N. Mittal, J.—Plaintiff no. 2 - Arun Kumar has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to assail order dated 21.02.2012 (Annexure P-3) passed by the trial court, thereby dismissing amendment application (Annexure P-1) filed by plaintiffs (petitioner and performa respondents no. 3, 5 and 6) against respondents no. 1 and 2/defendants. Plaintiffs have filed suit seeking declaration that they are owners in possession of 2340 share out of 8214 share in the suit property. Their case is that their predecessor Raj Kumar had purchased the said share vide sale deed no. 2499 dated 30.03.1976 from Sharda Devi etc. On the same day, vide sale deed no. 2500 dated 30.03.1976, defendant no. 2 had also purchased 1782 share out of 8214 share in the suit property from same Sharda Devi etc.

In amendment application (Annexure P-1), plaintiffs alleged that after sale of 2340 share in favour of plaintiffs'' predecessor Raj Kumar, vendor Sharda Devi etc. were left with only 398 share out of 8214 share in the suit property, and therefore, sale of 1782 share by the said vendors in favour of defendant no. 2 was in excess of their left out share and consequently, the said sale deed in favour of defendant no. 2 is illegal and null and void to that extent. By amendment of plaint, the plaintiffs want to take these pleas.

Defendants, by filing reply (Annexure P-2), opposed the amendment application. It was pleaded that plaintiffs have already referred to sale deed no. 2500 dated 30.03.1976 in favour of defendant no. 2 in the plaint itself, and therefore, it cannot be said that they earlier had no knowledge of the said sale deed at the time of filing the suit. Various other pleas were also raised.

Learned trial court, vide impugned order (Annexure P-3), has dismissed the plaintiffs'' application (Annexure P-1) for amendment of plaint on the ground that plaintiffs, by amendment of plaint, cannot be permitted to withdraw the admission made in the original plaint regarding sale of 1782/8214 share in favour of defendant no. 2. Feeling aggrieved, plaintiffs have filed this revision petition to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioners contended that the plaintiffs, by amendment of plaint, are not seeking to withdraw the factum of sale deed in favour of defendant no. 2 regarding 1782/8214 share, but are seeking to challenge the said sale deed to the extent of being in excess of the left out share of the vendors, and therefore, proposed amendment of plaint should be allowed having been sought at initial stage of the suit.

On the other hand, counsel for respondents no. 1 and 2/defendants contended that the plaintiffs already had the knowledge of sale deed in favour of defendant no. 2, and therefore, proposed amendment of plaint, seeking to withdraw the admission made therein, has been rightly declined by the trial court.

I have carefully considered the matter. The suit was instituted on 06.08.2010. The amendment application is dated 07.09.2010 and thus, the amendment application was moved at initial stage of the suit. There is neither any plea by the defendants nor any finding by the trial court that amendment was sought after commencement of trial. Consequently, since the amendment was not sought after commencement of trial, the same should have been allowed because law of amendment of pleading is quite liberal and discretion to allow amendment of pleading has been curtailed only if amendment is sought after commencement of trial. Consequently, in the instant case, amendment of plaint, having been sought at initial stage of the suit, the same should have been allowed and defendants could be compensated by costs.

The trial court has dismissed the amendment application on the ground that admission regarding sale of 1782/8214 share in favour of defendant no. 2, made in the original plaint, cannot be allowed to be withdrawn by amendment of plaint. This approach of the trial court is patently perverse and illegal and suffers from jurisdictional error. Even by amendment of plaint, the plaintiffs are not withdrawing the factum of sale deed in question in favour of defendant no. 2. On the other hand, legality and validity thereof on the ground of being in excess of left out share of the vendors, is only sought to be challenged by amendment of plaint. Consequently, it is not a case of withdrawal of any admission made in the original plaint by amendment thereof. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-3) passed by the trial court is set aside. Application (Annexure P-1) for amendment of plaint, filed by the plaintiffs is allowed and plaintiffs are permitted to make proposed amendment in the plaint, subject to payment of Rs. 2,500/- as costs precedent.