ABDUL LATIF Vs. NASIR AHMED

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is preferred by the plaintiff in the suit before the trial court. The grievance is with respect to the order allowing the application of the respondent No.1/defendant No.1 before the trial court for amendment of the written statement. The trial had admittedly commenced within the meaning of the judgment of the Supreme Court in Vidya Bai v. Padma Lata, JT (2009) 1 SC 303. The Supreme Court in the said judgment has held that after the insertion of the proviso in Order 6 rule 17 of the CPC, the court has no jurisdiction to allow the amendment which is barred by the said proviso.

(2.) THE plaintiff had sued for possession of immovable property and for mesne profits etc. The defendant No.1 contested the suit by filing a written statement. It was inter alia the case of the defendant No.1 that the plaintiff had got the property with respect to which the suit was filed transferred in his name only by taking advantage of the illiteracy of his brothers; the defendant No.1 is the son of the brother of the plaintiff. It was further pleaded that the sale deed of the property and/or the property was to be transferred in the name of the father of the defendant No.1 and his two brothers as the consideration for the property had 1/ been paid from the resources of the joint family business; but the plaintiff had cunningly and with mala fide intention got the property transferred in his name only in place of the name of the father of the defendant No.1 and another brother also. By way of amendment, the defendant No.1 sought to take the pleas : -

(3.) AS far as the reliance by the trial court on Baldev Singh (supra) is concerned, the subsequent judgment in Vidya Bai (Supra) has distinguished Baldev Singh as in Baldev Singh the trial had not commenced.