SHANKAR SINGH Vs. CHANAN SINGH

JUDGEMENT

(1.) ON May 25,1965, 20 Kanals and 18 Marias of land was sold by Arjan Singh Sohan Singh and Pritam Singh, vendors, to Shankar Singh defendant. On May, 25, 1966, that is to say, on the last day of limitation, Chanan Singh plaintiff instituted a suit to pre -empt that sale. In paragraph 1 of the plaint he said that the vendors are his collaterals, and in paragraph 2 of the plaint he said that he has a preferential right of pre emption in so far as the sale of the land in question is concerned over the defendant, which means the vendee, who, he has further said, is not related to the vendors in any way In the plaint Chanan Singh Plaintiff explained nothing else in regard to the nature of his relationship with the vendors. In the written statement filed by Shankar Singh vendee on August 8, 1966 he pointed out that the plaintiff had not said in what capacity he was claiming preferential right of pre -emption in his suit.

(2.) CONSEQUENTLY on August 27, 1966, the plaintiff moved an application under Order 6, rule 17 of the Code of Civil Procedure for amendment of the plaint to say in it that of the vendors Arjan Singh is his first cousin, being his uncle's son, and Sohan Singh and Pritam Singh are his nephews, just the same as they are nephews of Arjan Singh vendor. In spite of opposition by Shankar Singh vendee, that application was accepted by the trial Judge by his order of August 29,1966. This is a revision application against that order by Shankar Singh vendee.

(3.) THE Learned Counsel for the plaintiff then points out that so far as rule 17 of order 6 is concerned, it is a matter of discretion with the trial Court to allow or not to allow an amendment and if it has exercised discretion in this respect, this Court cannot interfere with that under section 115 of the Code of Civil Procedure. However, the discretion vested in a Court of law is always a judicial discretion and where it exe -rcises discretion, as in this case, against the statute of limitation, it can -not be said to have exercised the discretion judicially. It has, therefore, outstepped its jurisdiction in this respect and hence the matter can be considered under section 115 of the Code of Civil Procedure.