The main legal point established in the judgment is that an amendment necessary to decide the real controversy between the parties and which will not prejudice the parties should be allowed.

MANMOHAN SINGH, J.

1. By this application under Order VI rule 17 CPC, the plaintiff (hereinafter referred to as the „applicant?) seeks leave to amend the plaint by incorporating new paragraphs as mentioned in the application. In substance, the applicant is seeking the new relief of cancellation of the sale deeds dated 16th January, 2003 and 23rd April, 2007 relating to the fact that defendant No.1 had no right to sell any portion of the property No.A-78, Malviya Nagar, New Delhi, and the same are null and void as the same are in the teeth of status-quo order dated 12th January, 1983 granted qua the suit property in W.P.(C) No.16/1983, wherein the plaintiff and defendant Nos.1 and 2 were also parties in the capacity of petitioners.

2. The plaintiff has filed the original suit for declaration, pre-emption of sale, cancellation of sale deeds and permanent injunction. Following are the prayers made in the plaint:-

“a) pass a declaratory decree in favour of the plaintiff and against the defendants that property bearing No.A-78, Malviya Nagar, New Delhi comprising of Ground Floor/First Floor/Second Floor (partly constructed) is joint property of plaintiff, defendants No.1 and 2 and the same was never partitioned amongst themselves and there is no partition amongst the owners/co-sharers.

b) pass a decree declaring in favour of the plaintiff and against the defendants that the sale deed dated 16th January, 2003 executed by defendant No.1 in favour of defendant No.3 of Second Floor with roof rights thereof, registered with Sub Registrar-V vide registration No.446, Volume 3187, Page 183 to 193 on 16th January, 2003, claiming as exclusive property belonging to him is null and void and cancel the same being joint property and in violation of the provision of Section 22 of the Hindu Succession Act and for want of notice to the plaintiff and further sale by defendant NO.3 in favour of defendant N.4 vide registration No.4672, Book No.1, Vol. No.7222, page 36 to 49 on 23rd April, 2007 with the Sub-Registrar V, New Delhi is also null and void and does not confer any title, right or interest on him.

c) pass a decree of pre-emption in favour of plaintiff under Section 22 of the Hindu Succession Act, declaring and holding that the plaintiff being a co-owner/co-sharer has right to pre-empt the sale dated 16th January, 2003 made by defendant No.1 in favour of defendant No.3 for consideration of Rs.5 lakhs, the valuable consideration reflected therein and defendant No.1 be directed to execute the sale deed in favour of plaintiff for such consideration.

d) restrain defendant No.4, from alienating, selling, mortgaging or parting with possession of the suit property to any person and to create third party interest and further restrain defendant No.4, his agents, assigns, LRs, Power of Attorney holders or any person/s claiming through him directly or indirectly from raising any sort of construction on the second floor of the property No.A-78, Malviya Nagar, New Delhi and above second floor and further not to make any addition, alteration or renovation on the second floor. The defendant No.4 be further restrained from causing any obstruction or hindrance or interference with the use, enjoyment, access of the roof of the second floor and car parking lot on the ground floor under the lock and key of the plaintiff of property No. A-78, Malviya Nagar, New Delhi.”

3. By ex-parte orders dated 18th May, 2007, the defendant No.4 was ordered to maintain status quo in respect of title, possession and status of property bearing No.A-78 Malviya Nagar, New Delhi. This order was, later on by order dated 15th October, 2008, modified whereby the defendant No.4 was allowed to complete the white wash on the structure. The defendant Nos.1 to 3 were proceeded ex parte by order dated 25th July, 2007.

4. This Court vide order dated 7th August, 2008 put it to the notice of counsel for the plaintiff that under Article 97 Schedule I of the Limitation Act, 1973, the limit