J.V. Gupta, J. - (1.) THE Defendant appellants have fI d(sic) this appeal against the order of the Additional District Judge, Narnaul, dated January, 30, 1979, whereby the accepted the appeal and set aside the order of the trial Court dismissing the suit and remanded the case for decision on merits.
(2.) DHARMENDER Singh and Dhanender Singh minor sons of Mehtab Singh filed the present suit for possession by pro -emption of the suit land through Smt. Nawaldevi (their mother) next friend on July 24, 1974. The suit was filed against Ajit Singh and five others. It was alleged in the plaint that Devi Singh and others as the owners in possession of the suit land sold the same to Ajit Singh and Sarjit Singh Defendant Appellants for a sum of Rs. 25,000/ - while Rs. 50, 000/(sic) were mentioned in the sale deed fictiously. The Plaintiffs being the sons of Mehtab Singh vendor aval the real nephews of Pahlad Singh vendor were entitled to pre -empt the sale. On October 22 May 197 -, the Defendant Appellants (vendees) made an application that the plaint and the powers of attorney be kept in safe custody as the same has not been signed by Smt. Nawaldevi wife of Mahtab Singh as alleged in the plaint and in the power of attorney. On this, on 5. 11. 1974 an application under and r(sic) Rule 1 of the Code of Civil Procedure (hereinafter to be referred as the Code) for amendment of the plaint was moved on behalf of the Plaintiffs through one Murti Devi widow of Pahlad Singh. it was stated therein that though in the plaint it has stated that it is Nawaldevi who signed it but virtually the plaint and the power of attorney bears her signatures, i.e. Murti Devi widow of Pahlad Singh and under these circumstances, they may be allowed to make necessary amendments in the plaint and the minors be allowed to sue through their guardian Muni Devi widow of Pahlad Singh. This application was opposed by the defendant -vendees and consequently (sic) the trial Court framed the following issues: - 1. Whether Smt, Murti Devi thumb marked the plaint as well as the Vakalatnama on 24 7 1974 ; OPA. 2. Whether the name of Smt. Nawaldevi wife of Mehtab Singh was described in the plaint as well as Vakalatnama as next friend of the minor -Plaintiffs due to bona fide mistake? O. P. A. Whether the amendment sought is malafide one ? OPR.
(3.) WHETHER the suit has become barred and the vender -Respondents would suffer irreparable loss if the amendment prayed for is allowed ?OPR. 5 Relief. 3. On issue No. 2 it was held by the trial Court that all the circumstances go to prove that the name of Smt. Nawaldevi was not described in the plaint as well as Vakalatnama as next friend of the minor Plaintiffs due to bona fide mistake. On issue No. 3 it was further held that the present, application is a malafide one. On issue No. 4 it has been found that since the sale took place on July 24, 1973, and the present suit was filed on July 24(sic), 1974, whereas the application for seeking amendment was filed on November 5, 1974 which is a mala -fide one, the present suit would be time barred if the amendment is allowed at this stage. Feeling aggrieved with the judgment of the trial Court, the Plaintiffs went up in appeal before the Additional District Judge, Nornaul. The learned lower appellate Court neither discussed the evidence nor gave any finding issue wise but decided the matter taking altogether a different view, and accepted the appeal and set aside the order of the trial court. According to lower appellate Court, at the best, it is a case where the plaint and power of attorney remained unsigned and thus this was a procedural defect which could be got amended by the Plaintiffs any time irrespective of the fact, whether the period of limitation for filing the suit had expired. The present appeal has been filed against this order of the lower appellate Court by the vendee -Appellants. 4. Learned Counsel for the Appellants has vehemently argued that the application for amendment of the plaint could not be allowed as a very valuable right has accrued to the vendee Appellants. Moreover, the application for amendment was found to be malafide one by the trial Court and under the circumstances, the application was liable to be dismissed on this ground alone. It has been further argued that right of pre -emption is a very weak right and no leniency should be shown to the Plaintiff -Respondents in such a a suit of preemption. In support of his contention, he cited Banta Singh v. Smt Hirbajan Kaur, (1974) 76 P.L.R. 387 and others, a full Bench decision of this Court it has been held therein that in order to allow an amendment of a plaint or a written statement, the first point to be considered is whether the application tor amendment has been made bona fide. He has also cited -shim(sic) Singh v. Harish Chander, (1972) 74 P. L. R. 33, wherein a pre emption suit filed by the mother acting as next friend of vendor's minor son (pre em tor), the vendees proved that the pre emptor had attained majority when suit was filed the pre emptor moved an application under order 32 Rule 12 Code of Civil Procedure for permission to continue the proceedings on his own and independently of the mother and when, thereafter another application was moved by the pre emptor for amendment of the plaint it was held that where a piratical right is being enforced by such deceitful means, there could be no question of the proceedings being allowed to continue under Order 32(sic) Rule 12 of the Code of Civil Procedure or the plaint being allowed to be amended under Order 6 Rule 12(sic) of the Code.;