DAYA NAND Vs. SUNDER RAM

JUDGEMENT

(1.) THE plaintiff-petitioners have preferred this revision petition against the order of the Senior Subordinate Judge dated August 31, 1989, by which an amendment in the plaint has been allowed but a direction has been issued that the plaintiffs will not be entitled to lead any fresh evidence as the plea taken by way of amendment was for the purpose of elaborating the plea which existed in the plaint. The plaintiff-petitioners, by instituting a suit for declaration, have challenged the sale deed executed by their father, Notan Dass, in favour of Sunder Ram, etc. It has already been pleaded in the plaint that defendant No. 3, Notan Dass, had inherited the suit property from his father, Jhangi Ram, and it was ancestral property in the hands of Notan Dass, who was a member of the joint Hindu family, and, therefore, the alienation made by defendant No. 3 in favour of defendants Nos. 1 and 2 was without legal necessity and consideration. It is the specific plea in the plaint that the property was owned by Jhangi Ram, father of defendant No. 3, Notan Dass, who sold the property, and that sale was pre-empted by Notan Dass and Mool Chand, both brothers, in equal shares. Notan Dass having sold his share in favour of the defendants, Sunder Ram, etc. , by sale deed dated March 13, 1973, this suit was filed in the year 1985.

(2.) LEARNED counsel for the plaintiff-petitioners has argued that since the amendment was allowed, the right of leading evidence should have been given to the petitioners.

(3.) AFTER hearing counsel for the parties and after giving my thoughtful consideration to the entire matter, I am of the view that the trial court has acted rightly in declining to allow the petitioner to lead fresh evidence because the plea had already been taken and it was only to elaborate the plea already taken that the amendment was sought. By way of amendment, the plaintiffs, as is apparent from the impugned order, wanted to add the plea that Jhangi Ram sold the land in question and realising that he committed a mistake got a pre-emption suit filed through his son, Notan Dass, who financed the litigation and, in this manner, the land in question reverted to the joint Hindu family. It was the case of the plaintiffs themselves in the application under Order 6, Rule 17 of the Code of Civil Procedure that the specific amendment was being sought in order to elaborate the plea of preemption which existed in the plaint. There is nothing wrong in the view taken by the trial court that evidence cannot be led since the amendment was only for the purpose of elaborating an existing plea. In fact, much can be said about the plea of benami transaction in view of the Benami Transactions (Prohibition) Act of 1988 and the case law available on the point but since the amendment has been allowed and no revision has been filed by the defendant-vendees, this court is disinclined to take suo motu action for setting aside the order allowing the amendment. The revision petition is, thus, dismissed. No costs. Parties through their counsel are directed to appear before the trial court on May 31, 1990.