GAUTAM ROY Vs. DEBENDRA BAJORIA & ORS.

JUDGEMENT

(1.) This appeal is against judgment and order of the learned Single Judge whereby and whereunder prayer for amendment of the plaint has been refused. Upon reading of the judgment and order impugned we do not find cogent reason for which the amendment was refused. The learned Judge has recorded briefly that the amendment which is sought to be made is totally barred under the provisions of law of limitation and if it is allowed by this Court at this stage shall help the petitioner (plaintiff) to bring a fresh cause of action which is totally barred under the provisions of law of limitation.

(2.) Now the only point is whether the aforesaid grounds are appropriate for refusal of amendment or not. In order to appreciate the present, appeal we feel that the case made out in the plaint before suggested amendment is to be set out as the learned Trial Judge felt by necessary implication that if the amendment is allowed that would amount to bringing of legally barred cause of action. Upon careful reading of the plaint as it appears to us the case of the plaintiff in gist is that the private trust created by his grand father had come to an end the moment his father died. In 1990 during the period of the trusteeship of his father the property in question was gifted to his brother who in his turn alleged to have created mortgage for obtaining loan from the first defendant. The collusive mortgage suit was filed, and consent decree was passed and trust property was sold at a throw-away price. All these things had happened beyond his knowledge. The moment he came to know he had filed the suit alleging the decree obtained from this Court in connection with the suit property is a collusive act and his deceased father being the sole trustee did not have any right to create a gift in favour of his brother namely second defendant who consequently did not have any right. Nor did he acquire any right to create mortgage. So conveyance executed in terms of collusive decree is null and void. All these facts have been stated in the plaint but the relief claimed in the plaint is as follows:-

(3.) The original suit was filed in the appropriate Court at Alipore where on demurer action the plaint was returned on the ground of jurisdiction as the decree passed by the Court was under challenge and the said plaint was presented in this Court and this was registered as a regular suit. Again the defendant had taken out an application for rejection of plaint and it obtained order of status quo ex parte. Being aggrieved by the ex parte order of status quo the appellant before us had preferred an appeal, which was ultimately disposed of with clarificatory order of status quo.