Arun Kumar Taraiya vs Nemi Chandra

Manoj Misra, J.—The present revision has been filed by the plaintiff-revisionist against an order dated 21.11.2016 passed by the Civil Judge, (Senior Division), District- Lalitpur, in Original Suit No. 148 of 2011 by which the application 61-Ga filed by the plaintiff-revisionist under Order 1, Rule 10 (2) CPC read with Order 6, Rule 17 CPC has been rejected.

It appears that Original Suit No. 148 of 2011 was instituted by the plaintiff-revisionist to exercise right of pre-emption on the basis of settlement agreement between co-owners dated 29.03.1976. The cause of action to institute the suit allegedly arose on execution of an agreement for sale dated 11.01.2011. It appears that during the pendency of the suit, the agreement dated 11.01.2011 was rescinded by a registered document and the money received under the said agreement was also refunded as a result the cause of action for maintaining the suit did not survive. Thereafter, a sale-deed was executed in favour of those persons who were not defendants in the suit therefore, to challenge the sale-deed, a comprehensive amendment was sought in the plaint which came to be rejected by the impugned order on the ground that the cause of action for instituting the suit did not survive and, therefore, if the plaintiff had any grievance against execution of the sale-deed, he was free to institute a fresh suit against appropriate parties.

The learned counsel for the petitioner has submitted that the amendment should have been allowed because it was a subsequent development during the pendency of the suit and to advance substantial justice and to decide real controversy between the parties the amendment ought to have been allowed.

The aforesaid submission of the learned counsel for the revisionist cannot be accepted because the dispute between the parties which had arisen on account of agreement for sale dated 11.01.2011 did not survive and thereafter the cause of action to institute the suit as disclosed in the plaint had disappeared. The cause of action which was disclosed in the amendment application was subsequent cause of action which was not in between the same parties as were in the suit but it involved other parties also. Therefore, if the Court below rejected the amendment application by observing that if the plaintiff has any grievance against execution of the sale-deed then he could take recourse to instituting a fresh suit, sufficiently safeguards the interest of the plaintiff and, therefore, no case to interfere in exercise of revisional jurisdiction is made out.

The revision is dismissed.