PREM NARAIN Vs. IIIRD A D J ALLAHABAD

JUDGEMENT

(1.) S. U. Khan, J. Respondent No. 3, Bal Mukund has instituted Original Suit No. 317 of 1974 against petitioners for specific performance of an agreement for sale. Plaintiff filed an application seeking amendment of the plaint incorporating the averment of readiness and willingness. Munsif East, Allahabad through judgment and order dated 8-8-1980 allowed the amendment application. Defendants -petitioners filed Civil Revision No. 283 of 1980 against the said order. III A. D. J. Allahabad through judgment and order dated 9-12-1983 dismissed the revision, hence this writ petition.

(2.) LEARNED Counsel for the petitioner has contended that in the absence of plea of readiness and willingness the suit was fatally defective hence no amendment could be permitted in the plaint to incorporate the plea of readiness and willingness. In this regard reference has been made to a Division Bench authority of this Court reported in N. P. Singh v. Baijnath Singh, AIR 1981 Alld. 410. The said authority had placed reliance upon some earlier authorities of this Court including a Division Bench Authority. The Supreme Court over-ruled this view of the Allahabad High Court in Lakhi Ram v. Trikha Ram, 1998 (1) JCLR 698 (SC) : 1998 JIR 389 (SC) : AIR 1998 SC 1230. The Supreme Court reversed the judgment of this Court of a single Judge. In para 2 the Supreme Court held that "learned Single Judge who decided the appeal followed an earlier decision of the Division Bench of the High Court and held that once such proposed amendment was refused the suit would not survive and, therefore, the appeal was allowed". In the said case amendment was allowed at the stage of first appeal. The Supreme Court held that the order passed by the First Appellate Court allowing the amendment was perfectly legal and just, which was wrongly set aside by the High Court.

(3.) LEARNED Counsel for the petitioner has also argued that the suit should be deemed to have been filed on the date on which amendment application was allowed, hence the suit was barred by time. This plea is also not tenable. In view of the aforesaid authority of the Supreme Court where the averment of readiness and willingness is not there, it cannot be said that there is no suit in the eye of law.