SAFIA BAI Vs. KARAN SINGH

JUDGEMENT

(1.) THIS is an appeal by Mst. Safia Bai and others against the judgment and decree of the Civil Judge, Udaipur, dismissing the suit brought by the plaintiffs appellants on a preliminary point, viz, that notice, under sec. 80 C. P. C. had not been given to the receiver

(2.) THE facts put forward in the plaint may be briefly narrated in order to understand the point involved. THE suit was filed originally in the court of the Munsiff by there sisters one of whom is now dead and is represented by her heirs. THE defendants were Karansingh, mortgagee of the property in dispute, three brothers of the plaintiffs who were the mortgagors, and two sister of the plaintiffs who did not join in the suit and were therefore, made defendants. THE case of the plaintiffs was that they and their sisters who were defendants had certain shares in the property with their brothers who mortgaged the entire property including their shares. THE plaintiffs' claimed that the mortgage be cancelled so far as if related to their share and property be partitioned and possession be given to them.

(3.) THIS brings us back to the question of the amendment. As we have pointed out above, a notice might have been necessary to the receiver if the allegation remained as it was put forward in paragraph 10 (b) of the plaint. But there was an application for amendment by the plaintiffs which has yet not been disposed of. If that application is allowed, then it may put a different complexion on the matter (though we do not express any opinion finally about it ). The court below was wrong in dismissing the suit for want of notice under sec. 80 of the Code of Civil Procedure, without disposing of the amendment application. The appeal must, therefore, be allowed and the case remanded to the trial court for re-hearing. It will first call upon the defendants to reply to the amendment application and then decide whether the amendment application should be allowed or not. Thereafter the defendants should be called upon to file their written statement. The court will then from issues and if necessary decide such other preliminary issues as may arise including one about notice under sec. 80 C. P. C. if raised on the amended pleadings.