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Judgment
Mohan M. Shantanagoudar, J.—Application (I.A. VI) for amendment of plaint is rejected by the Court below. What is sought to be amended is only prayer column in the plaint i.e., in stead of the word "to set aside" the plaintiff wants to insert the word "to declare".
One more addition which the plaintiff wants to include is, the words "it will not affect the right of the plaintiff in respect of the suit schedule property"
In my considered opinion, no prejudice or injustice would be caused in case the amendment application (I.A. VI) is allowed inasmuch as the amendment will not change either the nature or character of the suit. Hence the application for amendment needs to be allowed. Accordingly, the amendment application (I.A. VI) is allowed. The impugned order stands set aside.
However, it is submitted by the defendants'' counsel that the suit is barred by the statute. Therefore, plaint needs to be rejected. There is no application filed by the respondents/defendants for rejection of the plaint before the Court below. Evidence is already being recorded. If it is so, it is open for the defendants to raise the question relating to maintainability of the suit. If such point is raised by the plaintiffs, the same will be decided along with the main suit. The Court below should raise an issue with regard to maintainability also. Accordingly the petition is allowed.