BALWANT RAI Vs. RAM GOPAL

JUDGEMENT

(1.) THIS is second appeal by Balwant Rai, Kulwant Rai, Haqiqat Rai and Daljit Rai against Ram Gopal, Chhabil Dass and Joginder Singh. It is directed against the judgment of Shri R. S. Gupta, Additional District Judge, Ambala dated May 30, 1970 allowing the appeal of the respondents and directing the trial Court to allow the respondents to amend the plaint filed on their behalf in a suit to pre-empt the sale of a house effected in favour of the appellants.

(2.) FACTS leading to the appeal are as under:-

(3.) BRIJ Lal and Jawala Parshad jointly owned house No. 8189/7433-101 situate in ward No. 6 in the town of Ambala City. On January 29, 1968, Jawala Parshad sold his one-half share to the appellants for Rs. 2250 by a sale deed executed and registered on that date. Suit for possession by pre-emption was filed by the respondents pre-empting the sale on the ground that they were tenants of the house sold. In the plaint, the respondents did not plead that there existed custom of pre-emption in respect of sale of urban immovable property situate in the town of Ambala City. In the written statement filed on behalf of the appellants, objection was raised that no suit could lie in that absence of plea raised on behalf of the respondents that there existed custom for pre-emption of the property sold. On February 5, 1969, application for amendment of the plaint was filed on behalf of the respondents stating that there existed custom for pre-emption of urban immovable property situate in the city of Ambala and that they be allowed to amend the plaint to specifically state therein that plea. In the reply filed on behalf of the appellants, the amendment was opposed. On February 24, 1969, the trial court rejected the amendment application holding that the amendment sought to be introduced pertained to a fresh cause of action and the sale deed having been registered on January 29, 1968 was belated and would convert the suit already filed into fresh suit after the period of limitation of one year. On February 27, 1969, the trial Court framed the following preliminary issue:-"whether the suit is not maintainable on the ground that custom of pre emption is not pleaded. "