LAKSHMI SAO Vs. SWAROOP CHAND JAIN

JUDGEMENT

(1.) This second appeal is by the defendants. The plaintiffs-respondents filed a title suit, initially seeking a relief for a declaration to the effect that plaintiff No. 1 was the purchaser of a truck bearing Registration No. BRM 4449, haying purchased the same in the name of plaintiff No. 2, his brother, and the defendants had no right, title and interest over the same. This truck was originally purchased by defendant No. 1 under a hire-purchase agreement from Messrs. B.P. Agarwalla of Dhansar in the year 1959. He made some defaults in payment of the monthly instalments and a sum of Rupees 4,300/- remained due under the said agreement. The said financier, in exercise of its power of seizure, seized 'the truck in question. The defendant No. I. thereafter, negotiated for sale of the truck with the plaintiffs and ultimately, it is said, the plaintiffs agreed to purchase the same for a sum of Rs. 8,001/-. Out of this agreed amount a sum of Rs. 4,300/- was paid by the plaintiffs to the said financier by a cheque on 4-10-1961 and the balance of Rs. 3,701/- was paid to defendant No. 1 then and there in cash, and the truck having been released, it was delivered to the plaintiffs. The plaintiffs' further case was that on 22-12-1961, the defendant No. 1 illegally took away the said truck. A criminal case under Sections 379 and 411 of the Indian Penal Code was instituted against the defendants for theft of the vehicle, but ultimately it ended in their acquittal. The plaintiffs alleged that in view of the acquittal of the defendants, a cloud was cast on their title over the truck. The suit, as already stated above, was filed on 27-4-1964 for a declaration on payment of a mere declaratory court-fee.

(2.) The suit was contested by defendant No. 1 alone by filing a written statement, in which the entire case of the plaintiffs was denied and it was specifically alleged that he had never entered into any transaction with the plaintiffs nor the plaintiffs had made any payment.

(3.) The suit was taken up for hearing on 19-4-1966. On 1-10-1966, when the plaintiffs bad closed their case and the witnesses on behalf of defendant No. 1 were being examined, the plaintiffs filed a petition for amendment of the plaint by adding a relief for recovery of possession of the truck from the possession of the defendants and. in the alternative, for recovery of the price of the said truck, namely, the sum of Rs. 8,001/-. It was stated in the said petition itself that in absence of the said relief "the suit will become infructuous. In case of an eventual decree of declaration of his right the plaintiff will get a fruitless decree and a bag of winds." The nraver for amendment of the plaint was opposed by the defendant No. 1. By order dated 4-10-1966. the learned Additional Subordinate Judge however without assigning any reason, allowed the amendment. Thereafter ad valorem court-fee was paid by the plaintiffs on this amount of Rs. 8,001/-.