In pursuance to this Courts order dated 20.05.2008, the petitioner had taken steps to serve the respondents. It has been reported by the Registry that on 04.07.2009 respondent no. 2 had died. No steps have been taken by the petitioner to bring the heirs on record.
2. Learned counsel for the petitioner submits that no substitution is required for bringing the heirs of respondent no. 2 on record, the reason being that respondent no. 2 is co-defendant, before the Court below along with the petitioner and his rights vis--vis rights of the petitioner were the same, hence no prejudice would be caused because the interest of the heirs of respondent no. 2 are being protected by the petitioner.
3. There was a Suit No. 407 of 1995 filed before the Civil Judge, Dehradun, wherein the plaintiff Dhan Singh, respondent no. 1, in the present writ petition had sought a relief for declaration for decree, declaring the sale deed dated 20.05.1994 as to be null and void. The relief is quoted hereunder:- (a) That a declaratory degree be passed in favour of the plaintiff and against the defendant declaring that the Sale-deed dated 20.05.1994 which is without consideration is null and void in law. (b) Cost of the suit be awarded to the plaintiff against the defendant (c) Any other relief to which the plaintiff is found entitled under the circumstances of the case be awarded in favour of the plaintiff against the defendant.
4. While the suit was pending, the plaintiff moved an amendment application though at a highly belated stage on 26.03.2007, wherein he tried to seek an amendment in the pleading, relief clause and in the Court fee etc. The amendment in the relief clause was sought to the following effect:- In the alternative, a decree of Rs. 55,000/- along with pendente lite and future interest as such rate as may be deemed proper by the learned court be passed against the defendant no. 1 and such amount be recovered by sale of the land described in the Schedule given below.
5. In the relief, respondent no. 1 has alternatively prayed for that he may be remitted the amount of Rs. 55,000/- along with pendente lite future interest. This application came up for consideration before the learned trial Court. This application of the petitioner was objected by the respondent no. 4 (Urban Co-operative Bank Limited) and that was opposed by the petitioner by filing an objection dated 01.05.2007.
6. The contention of the learned counsel for the petitioner in his objection before this Court is that any relief sought for declaration of sale deed to be bad, would effect the dispute because Dhan Singh (respondent no. 1) fell into arrears of loan which he has taken from defendant no. 3 i.e. the Financial Institution and his property was put to an auction and present writ petitioner who is defendant in the suit was the auction purchaser and if no relief is granted to him, it would affect his rights.
7. Learned trial Court vide its order dated 05.05.2007 rejected the amendment application. The reason for rejection was amendment itself, where the plaintiff (respondent no. 1 herein) had sought an amendment that he could be permitted to pray for refund of money. Earlier on account of lack of proper advise extended to him, could not seek the relief for refund as same would suffer from acquiescence as having acquiesced his rights.
8. Learned Court below rejected his amendment application on the ground that it was filed at a highly belated stage and the plea taken by way of an excuse for filing of belated amendment in lack of legal advice was not acceptable. Against the order of rejecting amendment, he preferred a revision and the said revision has been allowed by the impugned order dated 16.04.2008. Thus present writ petition filed by the defendant no. 4 of the suit No. 407 of 1995, who is the purchaser by way of an auction proceedings.
9. Without entering into the propriety of the impugned order, this court feels that the pleadings raised in the plaint vis--vis the pleadings raised in the amendment application are massively in contradiction to one another. Once the respondent no. 1 prays for declaration of a deed of conveyance to be void on the pretext that no actual consideration has exchanged and he admits that the documents was executed without consideration. If this be so, then there cannot be any amendment by way of incorporating a relief to the effect that in an alternatively to pay the sale consideration on declaration of a deed to be void, the two reliefs run contrary to one another.
10. By way of an interim order lastly, the learned counsel for the petitioner submits that as the suit is pending since 1995, the proceedings of the same may be expedited though it is not the relief claimed in the suit, but this Court while exercising its powers under Section 227 of the Constitution of India can always issue a direction to the subordinate Courts to decide the old cases expeditiously and thus the learned Court below is requested to decide the suit in question within a period of 6 months from the date of certified copy of this order without granting unnecessary and uncalled for adjournments.
11. Thus, on that limited ground itself and subject to above, the writ petition deserves to be allowed. The writ petition succeeds and the order dated 16.04.2008 passed by District Judge, Dehradun is set aside.
12. No order as to cost. (Sharad Kumar Sharma, J.) 01.09.2017 Mahinder/
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