M.Y.EQBAL, J. - (1.) HEARD Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Rajendra Prasad, learned counsel for the respondents.
(2.) THIS application under Article 227 of the Constitution of India is directed against the order dated 10.2.2005 passed by Sub -Judge, VI Dhanbad in Title (Partition) Suit No. 46/2000, whereby he has rejected the petition filed by the plaintiff/petitioner under Order VI, Rule 17, Civil Procedure Code for amendment in the plaint. The plaintiff/petitioner filed the aforementioned suit for a decree for partition of his 1/5th share in the suit property and for curving out his share and passing a final decree. During pendency of the suit, a petition under Order VI, Rule 17, Civil Procedure Code was filed. By the said petition a further relief for a decree for cancellation of registered sale deed dated 23.3.1982 executed by defendant No. 5 in favour of defendant No. 6 was sought for. The said prayer for amendment of the plaint was opposed by defendant/respondents by filing rejoinder. The court below after hearing the parties, rejected the said application on the ground that the hearing of the suit already commenced and further that pleading to that effect has already been made in the plaint claiming interest in the suit property which was transferred by defendant No. 5 in favour of defendant No. 6 in the year 1982 by registered sale deed dated 23.3.1982.
(3.) PROM perusal of the plaint, a copy of which has been annexed as Annexure I to the application, it appears that the plaintiff already disputed the title of defendant No. 6 in the portion of the suit property which was transferred by defendant No. 5 in favour of defendant No. 6. In the rejoinder to the amendment petition, the respondents have stated that a suit was filed by defendant No. 5 in the year 1989 being Title Suit No. 20/89 for cancellation of deed of gift of the year 1982 but the suit was ultimately withdrawn. It is, therefore, clear that on the basis of the facts already pleaded in the plaint, the plaintiff/petitioner has sought for a relief for declaration that the said transfer made by defendant No. 5 in favour of defendant No. 6 was illegal and void. It is well settled that merely because amendment of the plaint is allowed and the additional relief is added in the plaint that doesn 't mean that such relief has to be granted to the plaintiff. The Court has to decide the issue with regard to relief sought for by the plaintiff both on the question of limitation and on the question of merit.;