Dr. T.N. Singh, J. -- 1. Defendant has appealed, being aggrieved by the judgment and decree allowing plaintiff's claim and cancelling the sale-deed dated 13.6.1984. Plaintiff/respondent had impugned that sale-deed being void as consideration, though stated as paid there under, had not been paid in fact.

2. During the course of hearing of the appeal, prayer is made by defendant/appellant for leave to amend the written statement by adding para 12 to include the averment that without prejudice to other defence claimed if the Court finds and concludes that consideration had not in fact been paid, then, direction be made to the plaintiff/respondent to accept the same because merely on the ground of non-payment of consideration, the sale-deed could not be cancelled. That prayer is seriously opposed for valid reason, but that is to be disposed of at the outset before dealing with the appeal on merits.

3. Shri K.K. Singh, counsel appearing for the respondent, cited Modi Spinning & Weaving Mills Co. (AIR 1977 SC680) to submit that an entirely new case cannot be set up by way of amendment as would destroy any valuable right accrued to the plaintiff. Their Lordships held in that case that it is impermissible by amendment to introduce entirely different new case as a result of which the plaintiff would be completely displaced from admissions made by the defendant's written statement. He also relied on a decision of a learned single Judge of this Court in Ramprasad (1980 JLJ 809), about which it will suffice to say this much that it relies fully on Supreme Court's decision which the counsel cited. In another decision of this Court in Kartar Singh v. Kanhai Singh (AIR 1989 MP 322), it was noted that although under Order 7 Rule 7, CPC, plaintiff could pray for inconsistent relief, he must show that the alternative plea was maintainable in law and for that, reliance was placed on Apex Court's decision in Prem Raj (AIR 1968 SC 1355). The settled law that "the test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other side" was also noted.

4. In the instant case, two things are very clear. The new plea, though proposed to be set up as an alternative plea, if accepted, would tantamount to legalising an illegality. If the sale-deed is 'found void for want of consideration, the Court having no jurisdiction to enforce the contract would be required, if the amendment is allowed, to enforce a void contract by compelling the plaintiff to accept the consideration and validate the sale which was void ab initio. The new plea apparently is not maintainable in law. Secondly, by eft1ux of time, the value of the land purported to be sold under the impugned sale-deed has appreciated by metes and bounds; as such, if now the plaintiff is compelled to accept a deprecated value to put a premium on an illegal act, he is likely to suffer doubly and irreparably. For these reasons, in my view, the valuable right which has accrued to the plaintiff/respondent cannot be allowed to be defeated and, therefore, the application for amendment of written statement made in this appeal is rejected.

5. Now, on merits. One of the two contentions which Shri Lahoti has urged confidently and vehemently is that defendant's evidence beyond his pleadings should not have been read by the trial Court and in this appeal also, that cannot be read. Counsel has cited decisions to support that contention. In. Trojan & Co. (AIR 1953 SC 235), it has been held that decision of a case cannot be based on grounds outside the pleadings of parties and it is the case pleaded that has to be found. In Sheodhari Rai (AIR 1954 SC 758), variance between pleadings and proof is decried and their Lordships held that on the failure of the defendant to prove his case, the Court cannot make out a new case for him which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant. About the propo