SHARDULKHAN JAMALKHAN PATHAN Vs. MURGAPPA SHIDDAPPA MALI

JUDGEMENT

(1.) HEARD the petitioner's learned Advocate as well as the respondent's learned advocate.

(2.) THE civil revision petition is directed against the Order of the trial court whereby the proposed amendment has been disallowed. The petitioner's learned Advocate submitted that the law is to the effect that a degree of liberality is to be adopted in the matter relating to amendments; secondly, this amendment application was made in good time in so far as the evidence had not been let in and that, therefore, no prejudice would have been caused to the defendants if it was permitted and more importantly, that the relief of declaration that had not been originally sought was ancillary to the original relief. Petitioner's learned Advocate submitted that the learned trial judge has carefully considered the implications of the amendment that is sought and that there is considerable substance in the finding that not only an entirely new case being made out, but that it contradicts and conflicts with the original case made out by the plaintiff. Further the amendments are along the lines that the plaintiff has a joint interest in the property which is completely a new case, as originally he had contended that the property belonged to the uncle and that it had come to him through a will; and lastly, the learned Advocate submits that the document on the basis of which the defendants claim title is sought to be now attached on the ground of fraud and coercion, for which specific allegations are required to be set out which have not been done. He has also pointed out that there is a complete bar of limitation with regard to the attack vis-a-vis the sale deed.

(3.) THE petitioner's learned Advocate submitted that it is in correct to allege that a new case is being made out. He submits that it is only an alternate plea that is being put forward and that in these circumstances, the plaintiff would be justified in attacking the so-called sale deed which is bad in law because the plaintiff alleges that it was executed by practising fraud and coercion. It is his submission that no new case is made out and further more that the amendment application is within three years from the date of knowledge and that, therefore, the bar of limitation will not apply.