IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.423 of 2009 Md. Nasim Uddin,S/o Md. Moinuddin, resident of village- Samsha Kastoli, P.O. and P.S. Mansurchak, Sub-Registry and Sub-Division- Teghra, District- Begusarai. ….Defendant no.2-Respondent 1st party…Petitioner. Versus 1. Bharoshi Mahto 2. Ajo Mahto. 3. Baharan Mahto. All sons of late Bhanik Lal Mahto, all residents of Mauza- Agopur, Pergana- Naupur, P.S. Bhagwanpur, Sub-Registry and Sub-Division- Teghra, District- Begusarai. …Plaintiffs- Appellants….Opp. 1st party. 4. Full Kumari Devi, W/o Bhola Sharma. 5. Sita Devi, W/o Asharfi Sharma. Both are residents of Village- Agapur, P.O. & P.S. Mansoor Chak, Sub-Registry- Teghra, District- Begusarai. 6. Arun Kumar Sharma. 7. Kishore Kumar Sharma. 8. Chanchal Kumar Sharma. All sons of Ram Lagan Sharma, residents of village- Agapur, P.O. and P.S.- Mansoorchak, Sub- Registry- Teghra, District- Begusarai. 9. Ramjee Mahto, S/o Rublal Mahto, resident of Village- Hussainpur Samsa, Kyasthtoli, P.O.and P.S. Mansoorchak, Sub-Registry and Sub-Division- Teghra, District- Begusarai. ..Defendant 2nd party- Respondent-2nd party-Opp. 2nd Party. 10. Rajendra Pandey, S/o late Rudra Narayan Pandey, resident of village- Bara, Pargana, Amrethu, P.S. and Sub-Registry- Lakhisarai, District- Monghyr at present resident of Mouza- Agapur, Pargana- Naipur, P.S. Mansurchak, Sub-Registry- Teghra, District- Begusarai. ….Defendant no.3rd party..Respondent..Opp.3rd Party 11. Md. Kaishar, S/o Md. Idrish resident of Mauza- Bihat, Tola- Salimpur, P.O.- Bihat, P.S. Barauni, District- Begusarai. …..Defendant no.1…Respondent…Opp. 4th Party. ----------- 08- 28.11.2011 Heard Mr. Jitendra Kishore Verma for the petitioner, and Mr. Shyam Sundar Sinha „Shyam‟ for 2 opposite party no.1. Opposite party nos.2 and 3 have also entered appearance through counsel and filed duly executed Vakalatnama, but none appears on their behalf today. This civil revision application under section 115 of the Code of Civil Procedure has been preferred by defendant no.2- respondent 1st party of S.J. Title Appeal No.20 of 1999, and is aggrieved by the order dated 16.12.2008, whereby the application for amendment of the plaint filed by opposite party nos.1 and 2 herein, has been allowed. 2. A brief statement of facts essential for the disposal of this civil revision application may be indicated. Opposite party nos.1 and 2 instituted Title Suit No.49 of 1990, for declaration of title and consequential reliefs. The dominant relief prayed for was that the registered deed of absolute sale dated 1.9.1986, executed by one Rudra Narain Pandey, father of defendant 3rd party, in favour of opposite party no.1 (Bharoshi Mahto), may be declared to be a valid document of title. The suit was dismissed by judgment dated 30.9.1999, giving rise to the aforesaid S.J. Title Appeal No.20 of 1999. During the pendency of the appeal, opposite party nos.1 and 2 herein filed the instant application dated 15.12.2004 (Annexure-1 hereof), for amendment of the plaint which has been allowed by the impugned order. The 3 effect of the impugned order is that the plaintiffs have been permitted to challenge the validity of an earlier sale-deed dated 25.6.1986, allegedly executed by the said Rudra Narain Pandey in favour of opposite party no.11 herein (Md. Qaishar, defendant no.1), with respect to the same property which was alienated by the aforesaid sale-deed dated 1.9.1986. 3. While assailing the validity of the impugned order, learned counsel for the petitioner (defendant no.2) submits that the impugned order will seriously prejudice his case, which is accentuated of the position that it has been allowed at the appellate stage. The earlier sale-deed was to the full knowledge of the plaintiffs. He next submits that the amendment application has been filed on 15.12.2004 (Annexure-1), after lapse of 18 years of execution of the sale-deed dated 25.6.1986, which renders the relief prayed for barred by limitation. He relies on the following orders of the Supreme Court: (i) Ramti Devi (Smt. vs. Union of India, (1995) 1 SCC 198. (ii) Radhika Devi vs. Bajrangi Singh and others, AIR 1996 SC 2358. 4. Learned counsel for opposite party nos.1 and 2 herein (the plaintiffs) submits that necessary averments were 4 made in the plaint which were inadvertently omitted to be mentioned in the relief portion. Secondly, it does not change the nature of the suit. Thirdly, he is prepared to forego his right to lead further evidence which he is normally entitled in the wake of the impugned order. 5. Learned counsel for the petitioner in reply submits that he is not prepared to forego his right to file additional written statement, and the right to lead further evidence, consequent upon the amendment. He submits in the same vein that this may necessitate an order of remand to the learned trial court for further evidence to his harassment and prejudice. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident that the plaintiff was fully aware of execution of the earlier deed of 25.6.1986. Indeed reference of the same is made in the plaint, but the relief portion omits to incorporate the prayer for the requisite declaration with respect to the earlier deed. The learned trial court has also held that a possible suit with respect to the sale-deed dated 25.6.1986 would be time-barred. The following observations in the judgment of the trial court are relevant in the present context: 5 “It is evident that the plaintiffs have knowledge about the sale deed dated 25.6.1986 from the year 1986 and the present suit has been filed on 19.6.1990. The present suit must have been filed in the year 1989. So the present suit is barred by law of limitation. As such the remedy and rights of the plaintiffs became time barred.” ` It is thus evident that the plaintiffs were fully aware of the earlier sale-deed dated 25.6.1986, which indeed was stated in the plaint, but was neither incorporated in the relief portion, nor was sought to be incorporated in the issues to be adjudicated, nor was pressed at the time of hearing of the suit. In such a situation, the plaintiffs are entirely to be blamed for not pressing the question relating to validity of the sale-deed dated 25.6.1986. Secondly, an issue which might or could have been raised, not having been raised, will in law be deemed to have been raised and decided against the party concerned. Thirdly, law is well settled that an amendment to the pleadings can be ordered for even at the appellate stage, but then an extraordinary case has to be made out by the party concerned. In the facts and circumstances of the case, it appears to us that no such case has been made out by the plaintiffs which really is based on his negligence and to the utter prejudice of the defendants. There cannot be a premium on the negligence of the plaintiff. 6 Fourthly, suit with respect to the sale-deed of 25.6.1986, appears to be time-barred. We are, therefore, of the view that the court of appeal below has erred in allowing the application for amendment of the plaint which will result in serious prejudice to the defendants. 7. In the result, this civil revision application is allowed, and the impugned order dated 16.12.2008, passed in S.J.Title Appeal No.20 of 1999, is hereby set aside. (S K Katriar, J.) S.K.Pathak/