REKHA ROM Vs. ABHIJIT AND ORS.

JUDGEMENT

(1.) The petitioner is the defendant no. 2 in Other Suit No. 10 of 2010 pending before the Ld. Judge, Senior Division, 2nd Court at Midnapur. In the instant revisional application the petitioner has challenged an order dated 3rd June, 2013 passed by the Ld. Trial Court allowing the amendment of the plaint prayed for by the opposite party no. 1/plaintiff.

(2.) The plaintiff instituted Other Suit No. 483 of 2008 before the Ld. Trial Court claiming a decree of specific performance of an agreement for sale of the suit property against the defendant no. 1, delivery of possession of the suit property and alternatively return of the plaintiff's money. Prior to institution of the suit the defendant no. 2 purchased the suit property from the defendant no. 1 and the deed of conveyance in favour of the defendant no. 2 was duly registered on 25th March, 2008. This was within the knowledge of the plaintiff as would appear from paragraph 15 of the plaint wherein the factum of sale of the suit property by the defendant no. 1 to the defendant no. 2 has been stated. However, the plaintiff did not claim any relief for nullification of such sale in favour of the defendant no. 2. The suit was subsequently re-numbered as Other Suit No. 10 of 2010.

(3.) In February 2013, the plaintiff took out an application for amendment of the plaint alleging that from the witness commission report submitted by the commissioner in November, 2012, he came to know that the faculties of the defendant no. 1 were not functioning and that she was not in a position even to depose before the commissioner. The plaintiff alleged that the defendant no. 1 lacked capacity to effect sale of the suit property in favour of the defendant no. 2 and conveyance of the suit property in favour of the defendant no. 2 had been obtained by fraud and by exerting undue influence on the defendant no. 1. The plaintiff prayed for incorporation of these allegations in the plaint by way of amendment and also sought amendment of the prayer portion by incorporating a prayer for declaration that the sale by the defendant no. 1 of the suit property to the defendant no. 2 was null and void.