MANOJ MISRA, J. - (1.) Heard learned counsel for the plaintiff-petitioners; Sri A.P. Singh for the respondent 1/2 and perused the record.
(2.) A perusal of the record would go to show that the petitioners had instituted Original Suit No.519 of 1992 for cancellation of a sale deed dated 21st October, 1991 executed by Munesar, the father of plaintiff no.1-Jokhu (petitioner no.1 herein) and husband of plaintiff no.2 Nagesari (petitioner no.2 herein) on the ground that Munesar was an aged person and that the sale deed was obtained from him by playing fraud. The suit was decreed by judgement and decree dated 11th February, 1997 against which the defendants filed civil appeal no.62 of 1997, which is stated to be pending. It appears that in the civil appeal an argument was developed by the defendants that Munesar could not be an old and aged person, aged about 80 years, as claimed by the plaintiffs, because the plaintiff no.2, who happens to be his wife/widow, has been shown to be aged 50 years and, therefore, Munesar could have been on or about the same age. Upon the argument so advanced, the petitioners applied for amendment in the plaint seeking to add certain facts in paragraph 2 of the plaint so as to demonstrate that the petitioner no.2 (plaintiff no.2 in the suit) was the second wife of Late Munesar. It is this amendment application, which has been rejected by the impugned order. The Court below has observed in the order that the amendment is not permissible at such a belated stage.
(3.) The grievance of the petitioners is that there is neither any dispute as regards the plaintiff no.1 being son of Munesar nor any dispute that plaintiff no.2 was the widow of Munesar and since an argument was raised during the course of appellate proceedings, to explain the circumstance, the amendment was necessitated and since the amendment did not change the nature of the suit, which was instituted before the amending Act No.22 of 2002 by which the proviso to Order 6, Rule 17 CPC was added, the amendment was not barred by any provision of law and as the amendment was clarificatory in nature, the same ought to have been allowed.;