MANOJ KUMAR KHANDELWAL Vs. DWARIKA PRASAD SHARMA

JUDGEMENT

(1.) The petitioner herein is defendant No.6 before the trial Court. Respondent No.1 herein, who is the plaintiff before the trial Court, filed a civil suit claiming that he be granted vacant possession of the suit property from defendant No.7 - Shri Vardhman Jain Sansthan, Durg and also prayed for declaration that defendant Nos.1 to 6 have no right, title and interest over the suit property and the gift deed dated 27-10-2005 executed by defendant No.6 - the petitioner herein, is void and invalid and pursuant to the said gift deed, defendant No.7 has no right, title and interest over the suit property.

(2.) During the pendency of suit, on 11-5-2006, the plaintiff / respondent No.1 filed an application under Order 6 Rule 17 of the CPC seeking to insert averments in paras 13 & 18 of the plaint that defendants No.1 to 6 have fraudulently got mutated the suit property in their name on the basis of registered sale deed dated 5-7-2001 and this fact came to the knowledge of the plaintiff only on 22-12-2005 from the reply filed by defendant No.6 before the Revenue Court to the objection filed by the plaintiff. The plaintiff also prayed for addition in the relief clause that it be declared that the sale deed dated 5-7-2001 executed by defendants No.1 to 5 in favour of defendant No.6 has been executed fraudulently and without consideration and therefore the same be declared null and void and possession of the suit property be returned and thus, the suit is within limitation from the date of knowledge which was opposed by the present petitioner / defendant No.6 taking permissible plea including the plea of limitation that the said plea is barred by limitation.

(3.) The trial Court by its order dated 4-11-2006 rejected the said application holding that the plaintiff was one of the sellers/executants in the sale deed dated 5-7-2001 and he was aware of the sale deed since 5-7-2001 and therefore the proposed amendment is beyond the period of limitation. The second application filed praying for similar amendment second time was came to be rejected on 15-3-2010, but the third application seeking amendment dated 8-11-2017 was filed stating that the sale deed dated 5-7-2001 is forged and fabricated and not binding on the plaintiff. This time, the trial Court was impressed with the said application for amendment and granted the same overruling the objections raised by defendant No.6 and questioning that order, this writ petition has been preferred.