Allahabad High Court
Omjee And 2 Ors. vs Amir Chand And 7 Ors. on 12 December, 2022
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 3046 of 2016
Petitioner :- Omjee And 2 Ors.
Respondent :- Amir Chand And 7 Ors.
Counsel for Petitioner :- Krishna Nand Rai,Vijay Anand Rai
Counsel for Respondent :- Ishwar Kumar Upadhyay,Shashi Kant Sharma
Hon'ble Vivek Chaudhary,J.
Order on Civil Misc. Substitution Application No. 5 of 2022
Heard.
The substitution application is allowed.
Let necessary corrections be carried out during course of the day.
Order on petition
Heard learned counsel for the parties.
The petitioners have challenged the order dated 08.02.2016, whereby the learned Additional District Judge, Ballia has allowed the Civil Revision No. 80 of 2013 filed by the defendants-respondents.
Facts of the case are that the petitioners filed a suit for cancellation of the sale deed dated 14.02.2003. During pendency of the suit, the defendants sold the said property by two different sale deeds to the different persons. The petitioners in the said background prayed for amendment of the plaint to challenge the said subsequent sale deeds executed during pendency of the suit. He also prayed to implead the said purchasers as parties to the suit as defendants. The application was allowed by the Trial Court but the Revisional Court has reversed the judgment of the Trial Court on the ground that the sale deeds during pendency of the suit was executed in the year 2005 and the amendment application was filed in the year 2012, hence bar of limitation would apply.
Learned counsel for the petitioners has relied upon the judgment of the Supreme Court in the case of Puran Ram Vs. Bhaguram and another; 2008 (4) SCC 102, wherein the Supreme Court while considering the judgment in Pankaja and another Vs. Yellappa (Dead) by LRs. and others (2004) 6 SCC 415, has held that for complete justice between the parties, the Court can allow amendment even when there may be bar of limitation. Paragraph 15in Puran Ram (Supra), reads as follows:-
"15. Before parting with this judgment, we may deal with the submission of the learned counsel for the respondent that the application for amendment could not be allowed inasmuch as the same was barred by limitation. We are unable to accept this contention of the learned counsel for the respondents. In this regard, we may observe that the court may, in its discretion, allow an application for amendment of the plaint even where the relief sought to be added by amendment is allegedly barred by limitation. This view was also expressed by this Court in Pankaja & Anr. Vs. Yellappa (Dead) by LRs. & Ors. [(2004) 6 SCC 415]. In that decision, it was held that there is no absolute rule that in such a case, the amendment should not be allowed and the discretion of the court in that regard depends on the facts and circumstances of the case and such discretion has to be exercised on a judicious evaluation thereof. It was further held in that decision that an amendment, which subserves the ultimate cause of justice and avoids further litigation, should be allowed. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the Court and amendment of the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this court in Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon [ AIR 1969 SC 1267 ]. In paragraph 8 of the said decision this Court observed that "since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted." A reading of this observation would amply clear the position that no question of limitation shall arise when mis- description of the name of the original plaintiff or mis-description of the suit property arose in a particular case. Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted herein earlier, we do not find why the High Court should have interfered with the discretion used by the trial court in allowing the application for amendment of the plaint."
Learned counsel for the respondents submits that there is no illegality in the order of the revisional Court and since the petition is barred by limitation as well as on the principles of Section 52 of the Transfer of Property Act., the amendment application ought to be rejected.
I have perused the records and considered the submissions of learned counsel for the parties.
The sale deeds were executed during pendency of the suit. By allowing the amendment application only the multiplicity of litigation would be avoided. Impleading subsequent purchaser does not affect the rights of the parties and it is desirable that the suit is finally decided without any further objections being taken at a later stage by any person whatsoever.
In view thereof, the view of the Trial Court was correct and the findings given by the revisional court are not in the correct perspective of law.
Accordingly, the order dated 08.02.2022, passed by the revisional court is set aside.
The amendment application is allowed.
In view of above, it is provided that since the matter appears to be one of the oldest suit and is pending since 2003, the Court concerned is directed to proceed and decide the aforesaid suit, as expeditiously as possible on day-to-day basis, without any further delay. He shall not fix a date in the matter of more than a week and the Court shall not grant any unnecessary adjournment including the ground of strikes of the lawyers and also record reasons for granting any adjournment in the matter. The parties shall fully cooperate in early disposal of the case.
With the aforesaid observations, the petition is disposed of.
.
(Vivek Chaudhary,J.)
Order Date :- 12.12.2022
Arjun/-
