Case: Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi

3. Appellant herein is the son of the original plaintiff who filed a suit for declaration of his title and confirmation of possession as also for setting aside a deed of sale executed by the respondent herein. The said suit was filed on or about 21.5.1990. A deed of sale was executed in favour of defendant Nos.1 and 2 on or about 8.3.1990. An application for passing an interim order was filed in the said suit whereupon an order of status quo was passed on 1.6.1990. During the pendency of the said suit, two deeds of sale were executed in favour of third parties on 8.6.1990 and 18.6.1990.4. The interim order passed by the learned Trial Judge was affirmed by an order dated 9.11.1990. Three Miscellaneous Appeals were filed there against by the respondents. The matters were said to be pending before the District Judge for a long time. However, on or about 11.6.2003, the appellant herein moved an application for amendment to add a new relief in one of the plaints claiming preferential right in respect of the said property on the premise that the plaintiff was a co-sharer of the lands in suit to the followingThat after 1 "Ka" of the plaint one new relief 1 "Kha" may be added.1Kha-That if for any reason if there is any difficulty in granting relief 1 Ka then in that situation decree under Section 22 Hindu Succession Act (preferential right to acquire on same terms and conditions) be granted and the purchaser-defendant be directed that they should execute sale deed of the disputed land in favour of the plaintiff as mentioned in schedule 2, 3, 4 of the plaint and get it registered an if for any reason the new purchaser-defendant are not executing the sale deed nor are getting it registered then in that situation through Court the sale deed may be executed andherein, in response thereto raised the following contentionsThe application is not maintainable, the same being mala fide moved with the purpose to linger the trial of the case,b) The application is frivolous and bogus and the same is barred under law of limitation. Under Article 97 of the Limitation Act, 1963 for enforcement of right of pre-emption the prescribed period of limitation is one year from the date of sale, whereas this suit was filed in the year 1990 and the amendment is sought on this ground in 2003 after about 13 years of the filling of the suit,c) The proposed amendment seeks to change the entire nature and scope of the suit and also the cause of action,d) The amendment application is barred under Order II of CPC,e) The same is barred under law of waiver and acquiescence,f) That under the gift deed dated 6.9.49 which has attained finality each donees has got separate and defined title over their separate shares of gift property,g) In the past also the plaintiff has moved several amendment applications and now they are in perpetual habit of moving applications seeking amendment in the plaint,h) That trial of case has started long back and the application fails to disclosed any reason why the proposed amendment was not carried out in the past.By reason of a judgment and order dated 29.8.2003, the learned Trial Judge dismissed the said application for amendment of the plaint opining that the same, if allowed, would change the nature of the suit. The High Court, by reason of the impugned judgment has affirmed the said view of the learned Trial Judge.

Reasoning: n of Mr. Pandey that two deeds of sale were executed in violation of the order of injunction and in that view of the matter, the deeds of sale must be held to be invalid in law,in our opinion, cannot be a ground for allowing the amendment of the plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause of action for filing a fresh suit. Plaintiff was required to exercise his right under Section 22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of sale either would be declared valid or invalid. In either way, the appellant cannot take any benefit of the provisions of Section 22 of the Hindu Succession Act.10. It is also idle to contend that as the matters had been pending in the court of the District Judge for a long period, the appellant could not file an application for amendment of plaint. Even if the records had been called for by the learned District Judge, the same would not have come in the way of the appellant for filing an application for amendment of the plaint. A Trial Court, despite requisitioning of the records by the Appellate Court maintains a supplementary record. There is nothing on record to show that the learned District Judge granted an order of stay.The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint.