Reserved

Court No. - 9

Case :- CIVIL REVISION No. - 82 of 2019

Revisionist :- M/S Shreejan Builders Pvt. Ltd.

Opposite Party :- M/S Astha Real Estate Pvt. Ltd. And

Another

Counsel for Revisionist :- Rahul Sahai

Counsel for Opposite Party :- Rishabh Agarwal

Hon'ble Anjani Kumar Mishra,J.

Heard Shri Rahul Sahai, learned counsel for the revisionist and

Shri Ravi Kant, learned Senior Advocate for the defendant

opposite party no.1, who has stated that he does not propose to

file any counter affidavit and that the matter be heard and

decided finally at the admission stage, itself.

The instant revision is directed against the order dated

18.03.2019 passed by the 15th Additional District Judge, Agra,

whereby an application for amendment in the plaint has been

allowed.

The contention of counsel for the revisionist is that the

amendment application was filed after the trial in the suit had

commenced. The amendment was therefore hit by the proviso

to order 6 Rule 17 C.P.C.

By means of the amendment, the relief for declaring null and

void a sale deed dated 23.06.2008 has been permitted to be

incorporated. The plaintiff was all along aware of the sale deed

and reference thereto is to be found in paragraphs 3,4,5 and 8 of

the plaint, which was filed on 24.02.2009. The amendment

application itself was filed on 25.03.2015. The issues have been

framed in the suit on 24.11.2010 after the written statement had

been filed by the revisionist.

In the aforesaid facts and circumstances, the relief for

cancellation/ declaration that the sale deed in question was null

and void was barred by time. It is settled law that any relief

which is barred by limitation cannot be permitted to be

incorporated by way of amendment. The suit for cancellation

of the sale deed could be filed within three years of the sale

deed, itself.

Counsel for the revisionist has placed reliance upon a decision

in Mahajan Sahkari Awas Samiti Ltd. Vs. Resham Singh and

others, 2016 (6) ADJ 381 in support of his contentions.

It is additionally submitted the amendment application was after

thought as the plaintiff had earlier amended the plaint.

At that point of time, the plea of cancellation / declaration was

not incorporated in the plaint. The impugned order is therefore,

vitiated and is liable to be set aside.

Shri Ravi Kant, Senior Advocate, for the opposite party no.1

has submitted that no prejudice is caused to the defendant

revisionist by the amendment application having been allowed.

The suit is still to be tried and therefore, all the pleas available

to the revisionist can be raised in the suit,itself. In any case, the

impugned order has granted permission to the defendant

revisionist to file an additional written statement.

He has also relied upon sub-section 3 of section 115 C.P.C. as

applicable in U.P. to submit that the impugned order cannot be

interfered with because, even if, the revision is allowed and the

impugned order set aside, the same will not dispose of the suit,

itself. In such a situation, the revisional Court is not permitted

to interfere and or to vary or reverse the impugned order, by

sub-section 3 of Section 115 CPC.

I have considered the submissions made by counsel for the

parties and perused the record.

To decide the controversy raised by means of the amendment

application, it would be appropriate to refer to the proviso to

Order 6 Rule 17 CPC, which reads as follows -

" Provided that no application for amendment shall be allowed

after the trial has commenced, unless, the Court comes to the

conclusion that in spite of due diligence, the party could not

have raised the matter before the commencement of trial."

In the context of the arguments raised, I have perused the plaint

of the suit wherefrom this revision arises.

In paragraph 5 of the plaint, as initially filed, there is a clear

reference to the sale deed dated 23.06.2008 and of its being a

bogus and voidable document.

The averments made in paragrap