RAM ASARE Vs. GYAN BABU

JUDGEMENT

(1.) Heard Sri R.S. Singh, the learned Counsel for the petitioner and Sri R.S. Chauhan, the learned Counsel for respondent Nos. 1 to 4. Sri R.S. Chauhan submitted that he does not propose to file any counter-affidavit and that the writ petition may be disposed of at the admission stage itself.

(2.) The petitioner is a plaintiff and had filed a suit for the cancellation of the sale deed dated 29.6.1998. This date "29.6.1998" has been specifically alleged in paragraph 8 of the plaint. However, in paragraphs 15 and 16, the date of the sale deed was mentioned as "29.8.1998". In the prayer clause, the same date "29.8.1998" had been mentioned. The said suit was dismissed by a judgment dated 7.9.2004, against which, the petitioner filed a regular appeal before the appellate court. During the pendency of the appeal the petitioner realised that there was a clerical error in paragraph 15 as well as in the prayer clause of the plaint and therefore, moved an application for an amendment of the plaint, under Order VI, Rule 17 of the C.P.C. The said application was rejected by the appellate court by an order dated 6.3.2006, on the ground that the entire basis of the suit would change and that no amendment could be allowed in the appellate proceedings, in view of the proviso to Order VI, Rule 17 of the C.P.C. incorporated pursuant to the Amendment Act No. 22 of 2002 which came into effect from 24.5.2002. Aggrieved, the petitioner has filed the present writ petition.

(3.) I have perused the plaint and have found that the petitioner had made a specific averment in para 8 of the plaint with regard to the sale deed dated 29.6.1998. However, the date of the sale deed dated 29.6.1998 was mentioned as 29.8.1998, in paragraph Nos. 15 and 16 of the plaint as well as in the prayer clause. I have also perused the judgment of the trial court and find that even though issue Nos. 1 and 2 were framed with regard to the cancellation of the sale deed dated 29.8.1998, the discussion and the findings given by the trial court on the said issues was with regard to the sale deed dated 29.6.2008.