T S RAJU Vs. S ANIL KUMAR

JUDGEMENT

(1.) THE petitioner being aggrieved by the order dated 25-11-1998 passed by the principal civil judge (jr. Dn.), mandya on la. No. 4 in o. s. No. 214 of 1996, has preferred the above revision petition.

(2.) THE impugned order is one under which the amendment sought for by the plaintiff was dismissed not only on limitation but also on the ground that it is not based on the admitted facts.

(3.) THE trial court has considered the objection of the defendant that the plaintiff should have filed a suit for cancellation of the sale deed dated 29-11-1993 and the suit for cancellation of an instrument is to be filed within a period of three years from the date of such instrument. The present application for amendment having been filed on 25-6-1998, which is beyond the period of limitation. The objection to such contention by the plaintiff was that he need not ask for cancellation of the sale deed and those sale deeds are void ab initio and therefore there is no necessity to seek for cancellation of the same. Section 31 of the Specific Relief Act was relied upon. The trial court found that the plaintiff has clearly stated that the sale deed in question was executed before 24-11-1993 and the plaintiff was well-aware of the existence of the sale deed on 29-11-1993 itself and therefore he should have filed a suit on or before 29-11-1996. However, the plaintiff has not chosen to seek cancellation of such sale deed in question and on the other hand in order to overcome the stipulation is trying to convert the suit for declaration. The dictum in muni lal v oriental fire and general insurance company limited and another, was relied upon to the effect that the relief which becomes barred by time during the pendency of the proceeding cannot be permitted to be claimed by the amending plaint. Though not directly the plaintiff is trying to introduce the relief with regard to the cancellation of the document in question which relief is barred by time.