Ramswaroop Yadav and Another vs Prahlad Das Vairagi and Another

S.K. Keshote, J.—Heard learned Counsel for the petitioners perused the memo of revision petition and the impugned order passed by the Additional District Judge, Behror dated 18.1.1993. Under this order the application file by the plaintiff petitioners on 2.9.1996 praying therein for grant of the permission to amend the plaint was rejected.

Learned Counsel for the plaintiff petitioner submitted that the order of the court below is ex-facie illegal. Infact the learned court below has no considered the application filed Under Order 6 Rule 17 C.P.C.

It has been next contended that the earlier part of the disputed land was sold by the sale-deed dated 29.1.1979. The application filed by the plaintiff petitioners for amendment of the plaint and to challenge the validity legality and propriety of that sale-deed has been allowed against the sell of other part of the land on 7.1.1976 the amendment is not allowed and this identical amendment as prayed for should have been granted.

Lastly it is contended that if the amendment is allowed, the nature of suit will not change.

The suit was filed for specific performance and if during the pendency of the suit, property has been sold then this fact is to be brought on record of the plaint.

I have given my thoughtful considerations to the submission made by the learned Counsel for the plaintiff petitioners. It is wholly a wrong approach of the court below the fact that by grant of this amendment in the plaint, the nature of the suit will change. Earlier identical amendment prayed for has been granted by the court below. In case part of the disputed land has been sold during the pendency of the suit, that amendment should have been granted. The nature of the suit will remain the suit for specific performance of the agreement. Infact this amendment was necessary to be carried out in the plaint. The part of the land sold was covered under the agreement to sale and incase this has been sold during the pendency of the suit, this has to be brought on record and that sale-deed is to be challenged. It is true that doctrine of lis pendence too apply to this sale of the land in dispute, but if it is plaintiffs desire to bring this fact on record and challenge the sale-deed, it is always in the larger interest of the parties to the suit as well the vendees to permit of. The learned trial court has not carefully gone through the provisions of Order 6 Rule 17 C.P.C. as well the law laid down by the Hon''ble Supreme Court as well by this court on point of the grant of amendment of the pleadings. Otherwise also, once the trial court has allowed the identical amendment earlier and this identical amendment as prayed for normally should have been granted. The court should be liberal in granting amendment in the plaint. The cause of action is not different or separate or distinct. The suit remains to be the suit for specific performance of the agreement to sell and if ultimately the plaintiffs succeed in the suit naturally the sale-deeds are to be declared to be null and void or in operative against them. In case the order of the learned trial court is allowed to stand it will occasion failure of justice and further it will result in irreparable injury to the plaintiff petitioners and will result in further litigation in the matter. Looking to the nature of the amendment in plaint as prayed for and the fact on which it sought the application filed by the plaintiff petitioners Under Order 6 Rule 17 C.P.C. deserves acceptance.

In the result, the revision petition is allowed and the order dated 18.1.1993 passed by the Additional District Judge, Behror is quashed and set aside. The application filed by the plaintiff petitioners Under Order 6 Rule 17 C.P.C. is allowed and they are permitted to amendment the suit as proposed therein. A nobody has put appearance on behalf of the respondents, no order as to costs.