ASHOK KUMAR Vs. DHARM PAL & OTHERS

JUDGEMENT

(1.) This second appeal has arisen out of a suit for injunction filed by respondent No. 1, Dharam Pal. The sale was made by Smt. Punjabi, respondent No. 5. The suit was decreed by the trial Court on the basis that the pre-emptor as a co-sharer has preferential right to purchase the land. In the appellate Court, an application was moved by the appellant that whole of the property sold had been inherited by Smt. Punjabi from his brother Chamabla & as such the right to pre-empt would be governed by the provisions of Section 15(2) of the Punjab Pre-emption Act. The learned Additional District Judge, Kurukshetra, vide his order dated September 9, 1982, rejected the prayer for amendment on the ground that the appellant had no right of appeal. This finding was based on the plea of the defendants that the real purchaser was their father and they were benamidars for him. This plea of the appellant was opposed by the plaintiff and the trial Court held that the defendants were the real owners. In view of this finding it was ot open for the Additional District Judge to say that the defendants were only benamidars and no appeal was competent on their behalf. The application for amendment was thus illegally rejected wholly on misconceived grounds. After hearing the learned counsel for the parties on the prayer for amendment, I find no reason to decline the prayer of the appellant. No doubt, the prayer was made at a late stage but that by itself is no ground to decline the prayer. No right by late move had accrued to the plaintiff and he can well be compensated with costs for this lapse on the part of the appellant. The amendment is consequently allowed subject to the payment of Rs. 500/- as costs. The appellant shall file the amended written-statement in the trial Court within three weeks and the plaintiff shall thereafter file replication within one week. The trail Court will then frame the additional issue on this plea and after allowing an opportunity to the parties record his finding and remit the same to this Court preferably within three months. It is made clear that the parties would not be entitled to lead evidence on any other plea except the one taken by way of the said amendment.