UMA GUPTA Vs. SUSHILA

JUDGEMENT

(1.) This is a revision under S.115 of the C.P.C. against the order dt. 9th Dec., 1988 passed by the 2nd Additional Judge to the Court of District Judge, Indore, in Civil Original Suit No. 71 of 1988, whereby the plaintiffs application under O.6, R.17, C.P.C. for amendment has been rejected.

(2.) The material facts leading to this revision are that the petitioner's husband and respondent No. 1's husband are real brothers. The petitioner's husband is a retired Superintending Engineer of the Public Works Department of the State. The plaintiff - petitioner filed a suit for declaration and injunction in relation to the plot of land situated in Saket Nagar Colony in Village Khajarana, Tehsil and District Indore. According to the plaintiff, this plot was purchased by the plaintiff by a registered deed of sale for Rs. 6,000/- out of her own savings, in the name of defendant No. 1 as the plaintiff and defendant No. 1 are related and defendant No.1 had ho property in her name at Indore. This transaction was a benami transaction as the real owner was the plaintiff. As the deed was registered in the name of defendant No. 1, defendant No. 1 executed an irrevokable Power of Attorney in favour of the plaintiff but at the instance of defendant No.2, defendant No. 1 issued a notice for cancellation of the said Power of Attorney. The plaintiff having come to know that defendant No. 1, in collusion with defendant No. 2, is trying to become the owner of the suit property, filed a suit for declaration and permanent injunction restraining, defendant Nos. 1 and 2 from alienating or in any manner transferring the suit property. Defendant Nos. 1 and 2 filed their written statement and denied the allegations. Defendant No. 1 claimed that she is the owner of the property. The plaintiff-petitioner filed an application under O.6, R.17, C.P.C. whereby she wanted to place on record the circumstances to show that the suit land came to the share of the plaintiff and her husband in the family arrangement between the husband of the plaintiff and his two brothers, who constituted a Hindu Undivided Family. By the proposed amendment, the plaintiff wanted to add her husband as plaintiff No. 2 in the cause title of the suit and wherever there was the word 'plaintiff written in the plaint, it be read as 'plaintiff No. 1'. Para. 15(a) related to the title of the plaintiffs husband and the plaintiff, which they got by a deed of family settlement. In the relief clause, the word 'sole' was prayed to be deleted by the plaintiff in para 28 of the plaint.

(3.) The defendants filed their reply and opposed the application for amendment on the ground that the plaintiff, under the garb of the amendment application, wants to substitute a distinct cause of action and wants to build up a new case entirely different from the original claim, which has no foundation at all. It was also contested that the plaintiff has moved this application so as to defeat the provisions of the Benami Transactions (Prohibition) Act, 1988. In view of the provisions of this Act, the suit is not maintainable. Hence, to keep it alive, the plaintiff has come up with the proposed amendment.