- (1.) A suit was filed by the plaintiff-respondent Gulam Abdul Qadir Alvi against the petitioner for injunction and declaration as Sajjada Nashin of Khankah Faizul Rasool. The plaintiffs case is that after the previous Sajjada Nashin died there was an election by the Executive Committee in which the plaintiff respondent was elected as Sajjada Nashin. The plaintiff-respondent filed an application for amendment of the plaint to challenge the Will said to have been executed by the alleged previous Sajjada Nashin on 24-12-1991 in favour of the defendant petitioner. By order dated 5- 4-2003 the amendment application has been allowed by the trial Court. A revision against that order filed by the petitioner was dismissed on 26-8-2003.
(2.) Learned counsel for the petitioner has made two submissions. Firstly, the amendment sought, changes the nature of the suit and secondly it is time barred as the plaintiff had knowledge about the Will. The contentions may be dealt with in the order in which they have been made. I am not inclined to hold that the nature of the suit would change. The case of the plaintiff is that the office is elective and he is Sajjada Nashin on the basis of election after the death of the previous Sajjada Nashin. The authority to appoint the defendant as Sajjada Nashin by Will itself has been challenged. As the Will has been relied upon by the defendant, the question in view of the defendant's pleadings, whether the Will creates rights in favour of the defendant may have to be decided even on the existing pleadings. In the circumstances the amendment does not change the nature of the suit. The Will, it is said, which is being relied upon by the petitioner defendant appointing him as Sajjadanashin casts cloud upon the title of the plaintiff and as such the amendment sought to challenge the said Will does not change the nature of the suit. The suit still remains a suit for declaration that the plaintiff is Sajjadanashin of the Khankah. If the Will is found to be null and void the cloud on the title of the plaintiff as Sajjadanashin would be removed.
(3.) As regards the objection that the relief claimed is time barred it is open to the petitioner to take that plea by an additional written statement. Reliance is placed upon the decision of A. K. Gupta and Sons v. Damodar Valley Corpn. AIR 1967 SC 96 by the learned counsel for the petitioner in support of the contention that the amendment in pleadings cannot be allowed if such case is time barred and upon M/s. Modi Spinning & Weaving Mills Co. Ltd. v. M/s. Ladha Ram & Co., (1976) 4 SCC 320 and also upon B. K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712. In Damodar Valley case the amendment sought was allowed and reliance was placed therein upon L. J. Leach and Co. v. Jardine Skenair and Co., AIR 1957 SC 357 and upon the Privy Council decision Charan Das v. Amir Khan, AIR 1922 PC 249 in which amendment for adding a time barred claim was allowed. It was held that as a general rule a party is not allowed to set up a new case or a new cause of action when a suit on a new cause of action is barred. Where however the amendment does not constitute a new cause of action or raise a different case but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the statutory period of limitation. In Modi'Spinning and Weaving Mills (AIR 1977 SC 680) it was held that if the amendments were allowed it would amount to withdrawal of an admission and setting up of an entirely new case and would cause prejudice. The case is distinguishable on facts.;