# Lakshmi Kant Shukla v. Ram Niranjan

- **Citation:** (2022) 2 ILRA 264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-08
- **Case number:** Matters Under Article 227 No. 269 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakshmi-kant-shukla-v-ram-niranjan-48113
- **Pages:** 8

## Headnote

A. Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment application.
When cannot be allowed.- A proviso has
been inserted in Order VI Rule 17 C.P.C. which
says that "no application for amendment shall
be allowed after trial has commenced, unless
the court comes to the conclusion that inspite of
due diligence, the party could not have raised
the matter before commencement of trial". In
Vidyabai & ors. v Padma Latha & anr.r AIR 2009
SC 1433 it has been observed that the said
proviso is couched in mandatory form and the
court's jurisdiction to allow an application for
amendment is taken away unless the conditions
2 All. Lakshmi Kant Shukla Vs. Ram Niranjan
265
precedent therefor are satisfied viz. it must
come to the conclusion that inspite of due
diligence the parties could not have raised the
matter before commencement of the trial.

B. Date of First Hearing- In the said case the
Hon'ble Supreme Court has also held that the
date on which issues are framed is the date of
first hearing. Filing of affidavit in examination in
chief of the witnesses would amount to
commencement of proceedings.

C. In Kailash v Nankhu (2005)4 SCC 480 it has
been held that in a civil suit trial begins, when
the issues are framed and the case is set down
for recording of evidence. The ratio as laid down
in Kailash(supra) has been followed in Salem
Advocate Bar Association v U.O.I. (2005)6 SCC

## Text

264 INDIAN LAW REPORTS ALLAHABAD SERIES

19. We are not going into the issue as
to whether an order passed by appellate
authority
on
an
application
seeking
condonation of delay is an interim order or
final as the same has not been referred for
consideration by the Division Bench.
Different situations may arise in an appeal
filed
along
with
application
seeking
condonation
of
delay.
Firstly,
the
application for seeking condonation of
delay may be dismissed. As a consequence
thereof, the appeal will also fail. Another
situation may be that application seeking
condonation of delay is allowed and
thereafter the appeal may either be
accepted or rejected.

20. If any statute provides certain
period for filing of appeal, an appeal filed
beyond the time limit will certainly be not
entertained. If the provisions of 1963 Act
are applicable and party is entitled to seek
condonation of delay in filing appeal, an
application has to be filed specifying the
grounds on which delay in filing the appeal
is sought to be condoned. It is only after
that the application is allowed, the appeal
can be entertained and heard on merits.
Before that the appeal cannot be taken up
and considered on merits.

21. As far as the issue regarding hearing
of the application seeking condonation of
delay and the appeal simultaneously is
concerned, in our view, firstly the application
has to be considered. Only thereafter, the
appeal can be considered on merits but there
is nothing in law which requires hearing of
appeal on merits to be postponed mandatorily
after acceptance of the application seeking
condonation of delay. Both can be taken up
on the same day. However, the appeal has to
be heard on merits only after the application
seeking condonation of delay has been
accepted.

22. In view of the aforesaid
discussion, we answer the question referred
to the Division Bench that an application
seeking condonation of delay has to be
decided first before the appeal is taken up
for hearing on merits. However, it can be
on the same day and there is no
requirement of adjourning the hearing of
appeal on merits after acceptance of the
application seeking condonation of delay.

23. Let the matter be listed before
learned Single Judge as per roster for
further proceedings in the case.
----------
(2022)02ILR A264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters Under Article 227 No. 269 of 2022

Lakshmi Kant Shukla ...Petitioner
Versus
Ram Niranjan ...Respondent

Counsel for the Petitioner:
Pankaj Gupta

Counsel for the Respondents:
Ghaus Beg, Anurag Shukla

A. Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment application.
When cannot be allowed.- A proviso has
been inserted in Order VI Rule 17 C.P.C. which
says that "no application for amendment shall
be allowed after trial has commenced, unless
the court comes to the conclusion that inspite of
due diligence, the party could not have raised
the matter before commencement of trial". In
Vidyabai & ors. v Padma Latha & anr.r AIR 2009
SC 1433 it has been observed that the said
proviso is couched in mandatory form and the
court's jurisdiction to allow an application for
amendment is taken away unless the conditions
2 All. Lakshmi Kant Shukla Vs. Ram Niranjan
265
precedent therefor are satisfied viz. it must
come to the conclusion that inspite of due
diligence the parties could not have raised the
matter before commencement of the trial.

B. Date of First Hearing- In the said case the
Hon'ble Supreme Court has also held that the
date on which issues are framed is the date of
first hearing. Filing of affidavit in examination in
chief of the witnesses would amount to
commencement of proceedings.

C. In Kailash v Nankhu (2005)4 SCC 480 it has
been held that in a civil suit trial begins, when
the issues are framed and the case is set down
for recording of evidence. The ratio as laid down
in Kailash(supra) has been followed in Salem
Advocate Bar Association v U.O.I. (2005)6 SCC
344.

D. Amendment application cannot be allowed
under Order VI Rule 17 C.P.C. if entirely a new
case is made out for amendment. Municipal
Corporation of Greater Bombay v Lala Pancham
& ors. 1965(1) SCR 542(Constitution Bench)
followed.

E. Constitution of India - u/A 227 - When
to be exercised.--- Power U/A 227 is
supervisory in nature and has to be exercised
very sparingly and only where there is a clear
and patent error in law or perversity in the
appreciation of facts is made out. Radhey
Shyam v. Chhavinath (2015)5 SCC followed.

Petition dismissed. (E-12)

List of Cases cited:-
1. Vidyabai & ors. Vs Padma Latha & anr. AIR
2009 SC 1433

2. Kailash Vs Nankhu (2005)4 SCC 480

3. Salem Advocate Bar Assc. Vs U.O.I. (2005)6
SCC 344

4. Municipal Corporation of Greater Bombay Vs
Lala
Pancham
&
ors.
1965(1)
SCR
542(Constitution Bench)

5. Radhey Shyam Vs Chhavinath (2015)5 SCC
followed.
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

(1) Heard Shri Pankaj Gupta, learned
counsel appearing for the petitioner and
Shri Anurag Shukla, appearing for the
opposite party.

(2) The petitioner has challenged the
order dated 22.12.2018 passed by the
learned Civil Judge (Junior Division),
Kunda,
Pratapgarh,
in
Original
Suit
No.330/2012 rejecting his application for
amendment moved under Order 6 Rule 17
of the CPC as also the order dated
14.02.2021 passed by the learned District
Judge, Pratapgarh, in Civil Revision No.14
of 2019 [Lakshmi Kant Shukla Vs. Ram
Niranjan].

(3) It has been submitted by the
learned counsel for the petitioner that the
petitioner had filed a Suit No.330 of 2012
on 18.05.2012 for permanent injunction
against Hari Shankar and Ram Niranjan
praying that the respondents be restrained
from interfering in his Abadi land over
which the petitioner is in possession.
During the pendency of the Suit, the name
of Hari Shankar was deleted and Ram
Niranjan alone remained the defendant.
The Commission was issued and a report
prepared on 09.07.2012. Again a Survey
Commission was issued by the court
concerned and a report prepared and
submitted
on
10.02.2018.
A
written
statement was filed by the defendant and
issues were framed in the Suit, but till date,
the parties have not adduced any evidence.
An
application
was
moved
by
the
defendant. During preparation of the case
for arguments, it was noticed by the
counsel of the plaintiff that the material
266 INDIAN LAW REPORTS ALLAHABAD SERIES
facts had not been stated and therefore an
application under Order 6 Rule 17 of the
CPC for amendment of the Suit was moved
on 28.11.2018. The amendment moved did
not affect the nature of the Suit and the Suit
property remained abadi and Sahan land of
the petitioner. The petitioner only wished to
explain his right to Abadi land and Sahan
land on the basis of a Will made out in his
favour by one Hari Mohan, the maternal
grand father of the petitioner. Such
application was rejected on 22.12.2018 by
observing that the amendment is highly
time barred and it changed the nature of the
Suit. The learned Trial Court did not
disclose as to how the nature of the Suit
would change. No opinion was also
recorded in the order impugned that the
Trial had begun and evidence was being led
by the parties. It has been argued that since
the trial had not begun, the first clause
under Order 6 Rule 17 of the CPC which
entitles a party to move amendment
application at any stage of the Suit would
apply and not the Proviso to the Rule.

(4) It has been argued by Shri Pankaj
Gupta that the petitioner's mother being
widow was living with her father at Village
Shakardaha and the petitioner being born
and raised in his maternal grand parent's
house was in possession of the property in
question. It has also been submitted that the
purpose of amendment is only to avoid
unnecessary multiplicity of the litigation.
Such amendments are normally allowed to
avoid further litigation between the parties.
Learned counsel for the petitioner has
placed reliance upon the judgment rendered
by Hon'ble the Supreme Court in Shiv
Mohan Pal Vs. Shiv Mohan Pal @ Hakla
reported in 2020 (38) LCD 450 and
argued that the petitioner having legal
grounds, filed a Civil Revision challenging
the order passed by the learned Trial Court
numbered as Civil Revision No.14 of 2019
it was arbitrarily rejected by the District
Judge, Pratapgarh.

(5) Learned counsel for the petitioner
during the course of arguments, has placed
reliance upon the judgment rendered by this
Court in a Co-ordinate Bench in Shiv
Mohal Pal Vs. Shiv Mohan Pal @ Hakla
reported in 2020 (38) LCD 450, wherein
this Court has placed reliance upon a
judgment rendered by the Hon'ble Supreme
Court in Ramesh Kumar Agarwal Vs.
Rajmala
Exports
Private
Limited
reported in (2012) 5 SCC 337, where it
was observed that Courts must not refuse
"bonafide, legitimate, honest and necessary
amendments" and that they should never
permit malafide and dishonest amendments,
the approach in such matters should be
liberal. The purpose and object of Order 6
Rule 17 of the CPC is to allow either party
to amend his pleadings in such manner and
on such term as may be just. Amendment
cannot be claimed as a matter of right and
under all circumstances, but the Court while
deciding such prayers should not adopt a
hyper technical approach. Liberal approach
should be the general rule particularly in
cases where the other side can be
compensated with costs. Normally, the
amendments are allowed in pleadings to
avoid multiplicity of litigations.

(6) This Court in Shiv Mohal Pal
(Supra) has placed reliance upon a
judgment rendered by the Privy Council
and other cases by English Courts of law,
also to come to the conclusion that the Trial
Court in the particular case before it had
rightly allowed the plaintiff's application
for amendment in his plaint.

(7) This Court has carefully perused
the judgments in Shiv Mohan Pal where a
2 All. Lakshmi Kant Shukla Vs. Ram Niranjan
267
reference has been made to a judgment
rendered
in
Revajeetu
Builders
&
Developers Vs. Narayanaswamy & Sons,
reported in (2009) 10 SCC 84, wherein
some of the important factors which may
be kept in mind while dealing with an
application filed under Order 6 Rule 17 of
the CPC have been enumerated in the
following terms:-

"20.
In
Revajeetu
Builders
&
Developers v. Narayanaswamy & Sons
this Court once again considered the scope
of amendment of pleadings. In para 63, it
concluded as follows:

"Factors
to
be
taken
into
consideration
while
dealing
with
applications for amendments

63. On critically analysing both the
English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:

(1) whether the amendment sought is
imperative for proper and effective adju
cation of the case;

(2)
whether
the
application
for
amendment is bona fide or mala fide;

(3) the amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in terms
of money;

(4) refusing amendment would in fact
lead to injustice or lead to multiple
litigation;

(5) whether the proposed amendment
constitutionally or fundamentally changes
the nature and character of the case; and

(6) as a general rule, the court should
decline amendments if a fresh suit on the
amended claims would be barred by
limitation on the date of application. These
are some of the important factors which
may be kept in mind while dealing with
application filed under Order 6 Rule 17.
These are only illustrative and not
exhaustive."

(8) This Court in Shiv Mohan Pal
observed that while considering the Order 6
Rule 17 of the CPC the expressions upon
"at any stage of proceedings", and for the
"purpose of determining the real question
in controversy" are important. The whole
object and purpose of the aforesaid
provision is to avoid multiplicity of
proceedings, to shorten the litigation, and
to settle the dispute between the parties. It
is for this purpose that the rule permits
amendment at any stage of proceedings as
may be necessary for the purpose of
determining
the
real
question
and
controversy between the parties. The
expression "at any stage of proceedings" is
not circumscribed or limited by any
condition and the Legislature in its wisdom
has left the same wide open without
imposing any kind of limitation to its
elasticity and if it is necessary for the
purpose of determining the real question in
controversy, then amendments can be
allowed at any stage of the proceedings i.e.
before or during the stage of Trial, or even
after the Judgment or in Appeal. The Power
to grant amendment of pleadings is
basically intended to further the ends of
justice and is not barred by any technical
limitations.

(9) Shri Anurag Shukla, appearing for
the respondent has pointed out the order
passed by this Court in Writ Petition
No.27539 (M/S) of 2017 (Ram Niranjan
Vs.
Civil
Judge
(Senior
Division),
Kunda, Pratapgarh and others) passed
on 15.11.2017 wherein this Court had been
approached by the defendant Ram Niranjan
(who is the respondent in this writ petition)
praying that a direction be issued to the
learned Trial Court to decide the Regular
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Suit No.330 of 2015 expeditiously. This
Court had observed that the endeavour
should be made to decide the matter
expeditiously,
if
there
is
no
legal
impediment in this regard, and keeping in
mind the age of the petitioner defendant
(who was 72 years old). It had observed
that unnecessarily adjournments should not
be granted in the Suit.

(10) It has been submitted by the
learned counsel for the respondent that a
copy of the order dated 15.11.2017 was
filed immediately before the Trial Court
and the plaintiff had full knowledge of such
direction of this Court. After the same was
filed issues were framed and thereafter an
application for amendment was moved by
the plaintiff only on 28.11.2018 with the
intention to change the very nature of the
Suit from one praying for permanent
injunction to the defendant to not to
interfere in the possession of the plaintiff to
one of declaration of his right to the
property in question on the basis of an
unregistered and highly dubious Will
allegedly made out in his favour by the
maternal grand father Hari Mohan.

(11)

Learned
counsel
for
the
respondent has pointed out the judgment
rendered by the Hon'ble Supreme Court in
Vidyabai & Others Vs. Padmalatha &
Another reported in AIR 2009 SC 1433,
where a Division Bench of the Court was
considering the question as to when "a trial
is supposed to commence." There was a
divergence of opinion in earlier cases
which was considered in detail by the
Supreme Court and thereafter the Supreme
Court observed that by the Civil Procedure
Code (Amendment Act) 2002, a Proviso
had been inserted in Order 6 Rule 17 which
says that "no application for amendment
shall be allowed after trial has commenced,
unless the court comes to the conclusion
that inspite of due diligence, the party
could not have raised the matter before the
commencement of Trial."

(12) The Supreme Court observed
that it is couched in mandatory form. The
Court's jurisdiction to allow an application
for amendment is taken away unless the
conditions precedent therefor are satisfied,
viz., it must come to the conclusion that
inspite of due diligence the parties could
not
have
raised
the
matter
before
commencement of the Trial."

(13) The Supreme Court thereafter
framed issue to be considered by it in its
judgment saying that question would be as
to "whether the Trial had commenced or
not? It thereafter held that the date on
which issues are framed, is the date of first
hearing. The provisions of the Code of Civil
Procedure envisaged taking of various
steps at different stage of proceedings.
Filing of affidavit in view of Examinationin-Chief of the witnesses, in our opinion
would
amount
to
commencement
of
proceedings."

(14) In Kailash Vs. Nankhu
reported in (2005) 4 SCC 480, the
Supreme Court had observed that in a Civil
Suit, trial begin when the issues are framed
and the case is set down for recording of
evidence. All the proceedings before that
stage are treated as preliminary proceedings
to the Trial or for making the case ready for
trial.

(15) In a Salem Advocate Bar
Association Vs. Union of India reported
in (2005) 6 SCC 344, the Court noticed in
Paragraphs-41, 42 & 43 that Order 6 Rule
17 of the CPC had been amended in 2002,
and under the Proviso, no application for
2 All. Lakshmi Kant Shukla Vs. Ram Niranjan
269
amendment shall be allowed after trial has
commenced, unless in all due diligence, the
matter could not be raised before the
commencement of the Trial. The ratio in
Kailash
Vs.
Nankhu
(Supra)
was
reiterated, stating that the Trial is deemed
to commence when the issues are settled
and the case is set down for recording of
evidence. The Supreme Court observed
thereafter in Paragraph-14 of its judgment
in Vidyabai (Supra) thus:- "it is Primal
duty of the Court to decide as to whether
such an amendment is necessary to decide
the real dispute between the parties. Only if
such a condition is fulfilled, the amendment
is to be allowed. However, proviso
appended to Order VI, Rule 17 of the Code
restricts the power of the Court. It puts an
embargo on exercise of its jurisdiction. The
Court's jurisdiction, in a case of this nature
is limited. Thus, unless the jurisdictional
fact, as envisaged therein, is found to be
existing, the Court will have no jurisdiction
at all to allow the amendment of the
plaint."

(16)

Learned
counsel
for
the
respondent has also pointed out the
judgment rendered by the Hon'ble Supreme
Court by a Constitution Bench in the case
of Municipal Corporation of Greater
Bombay Vs. Lala Pancham and Others
reported in (1965) 1 SCR 542, where it
was observed that an entirely a new case
made out in the amendment could not be
allowed to be set up by the plaintiff. The
Constitution Bench judgement in Pancham
(Supra) was rendered before the CPC was
amended but the principles applicable to
belated
movement
of
amendment
application remained the same.

(17) It has been argued by Shri
Anurag Shukla on the basis of such
judgments that initially the plaintiff had
come up with a case that he had been in
possession over the property in dispute
since the time of his ancestors and it being
Abadi was settled with him as per Section 9
of the Uttar Pradesh Zamindari Abolition &
Land
Reforms
Act,
whereas
the
amendment application made out a case
that the mother of the petitioner had started
living in her parental house (after becoming
a widow) and his maternal grand father
made out a Will in his favour in 1983,
although unregistered, which had made him
his heir and thus entitled to succeed to all
property owned by him including the
property in dispute. Learned counsel for the
respondent has pointed out that mother of
the petitioner was married and had gone to
her matrimonial home and the ancestors of
the petitioner i.e. plaintiff would be his
parental grand parents and not his maternal
grand parents.

(18)

Learned
counsel
for
the
respondent
has
pointed
out
another
judgment of the Supreme Court in Pandit
Malhari Mahale Vs. Monika Pandit
Mahale and Others reported in (2020) 11
SCC 549, where the Supreme Court had
observed that the Trial Court while
allowing the application under Order 6
Rule 17 after trial had begun, did not notice
the condition mentioned in the Proviso.
There being no finding by the Trial Court
as contemplated by Order 6 Rule 17
Proviso the Trial Court ought not to have
allowed the amendment.

(19) The Learned counsel for the
respondent has also referred to a judgment
rendered by Hon'ble the Supreme Court in
the case of Nagindas Ramdas Vs.
Dalpatram Inccharam, reported in AIR
1974 SC 471, where in Paragraph-26, the
Supreme
Court
had
observed
that
"admissions if true and clear, are by far the
270 INDIAN LAW REPORTS ALLAHABAD SERIES
best proof of the facts admitted. Admissions
in
pleadings
or
judicial
admissions,
admissible under section 58 of the
Evidence Act, made by the parties or their
agents at or before the hearing of the case,
stand on a higher footing than evidentiary
admissions. The former class of admissions
are fully binding on the party that makes
them and constitute a waiver of proof. They
by themselves can be made the foundation
of the rights of the parties. On the other
hand, evidentiary admissions which are
receivable at the trial as evidence are by
themselves, not conclusive."

(20) It has been argued by Shri
Anurag Shukla that there was an admission
by the plaintiff in that there was a statement
in the plaint that he was in possession as far
as back as when Section 9 of the U.P.Z.A.
& L.R. Act became applicable, and now the
case that was being set up by the plaintiff
was that he had been bequeathed the
property by an unregistered Will. It has
been submitted that even otherwise in a
Suit for injunction on the basis of
possession, only possession has to be
proved and not the right which may have
led to such possession, which could only be
decided in a Suit for declaration.

(21) This Court having heard the
learned counsel for the parties has gone
through the orders impugned and finds that
the learned Trial Court had noticed the
submissions made by the plaintiff in the
plaint and compared them with the
submissions now proposed to be made by
way of amendment in the pleadings in the
application under Order 6 Rule 17 of the
CPC, and found them to be contradictory in
nature. It had observed that the plaintiff by
way of proposed amendments was making
out a case which he should have made out
in the first place while filing the plaint and
that the Suit was at the stage of taking of
evidence.
If
such
application
for
amendment is allowed, the plaintiff's right
to the property in question would be
determined
on
absolutely
differently
leading to a change in the nature of the
Suit.

(22) No doubt the Trial Court did not
refer to any judgments to substantiate its
conclusions but when the Civil Revision
was filed the learned District Judge was
careful enough to notice all the judgments
that were cited by the counsel for the
plaintiff/revisionist and also the judgment
that were cited by the respondent and dealt
with them individually and came to the
conclusion that the issues had been framed
in the Trial and the matter was at the stage
of taking evidence and the amendments
proposed in the application under Order 6
Rule 17 of the CPC would in fact change
the nature of the Suit at a belated stage i.e.
six years after filing of the said Suit.

(23) This Court finds from the orders
impugned
that
there
is
a
detailed
consideration of the facts of the case as
mentioned in the plaint and as mentioned in
the application for amendment. There is a
correct appreciation of the law also by the
learned courts below. The Jurisdiction
under Article 227 of the Constitution of
India being supervisory in nature has held
by Hon'ble Supreme Court in the case of
Radhey Shyam Vs. Chhavinath reported
in (2015) 5 SCC 423, it has to be exercised
very sparingly and only where there is a
clear and patent error in law or perversity
in the appreciation of facts is made out
which is not the case here.

(24) The petition stands dismissed.
No order as to costs.
----------
2 All. Ram Kumar Vs. Gulshan Babau & Ors.
271
(2022)02ILR A271
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters Under Article 227 No. 20302 of 2021

Ram Kumar ...Petitioner
Versus
Gulshan Babau & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Narain, Pawan Kumar Verma

Counsel for the Respondents:
Vijay Kumar

A. Code of Civil Procedure, 1908 -
Order XLI Rule 27 - The application
moved under Order XLI Rule 27 CPC before
the appellate court cannot be rejected by
taking hyper technical view of the matter.
Sangram Singh v Election Tribunal AIR 1955
SC 425 followed, wherein it was observed
that CPC must be regarded as such i.e.
something designed to facilitate justice and
not a penal enactment for punishment and
penalties; not a thing designed to trip
people up. Too technical a construction of
sections that leaves no room for reasonable
elasticity of interpretation should therefore
be guarded against provided always that
justice is done to both sides' lest the very
means designed for furtherance of justice
be used to frustrate it.

B. Section 65 Evidence Act- Xerox copy of
certificate of registration of Trade Mark, in the
face of the objections raised by the defendant,
could not have been marked as an exhibit.

Petition allowed. (E-12)
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

1. Heard learned counsel for the
petitioner and learned counsel appearing on
behalf of the respondent and perused the
order impugned dated 09.08.2021 passed
by the leaned Additional District Judge,
Court No.7, Hardoi, in Civil Appeal no.11
of 2019: Ram Kumar Vs. Gulshanbabu and
others.

2. It is the case of the petitioner that a
suit for specific performance of contract
was filed by the respondent nos.1 and 2
against the petitioner and they impleaded
their brother i.e. the respondent no.3 herein
as defendant no.2 in the said suit. The
plaintiff's case before the learned trial court
was that the defendant no.1's mother Smt.
Ram Kali had entered into an agreement to
sell the property in dispute for an amount
of Rs.50,000/-, out of which Rs.30,000/-
was given to her and agreement to sell was
registered with the understanding that the
remaining amount shall be given to her
within three years by the plaintiffs and if it
is given within time, the mother of the
defendant no.1 would execute the sale
agreement in their favour. However,
despite several attempts being made by the
plaintiffs, the mother of the defendant no.1
did not execute the sale agreement in their
favour.

3. The petitioner appeared in the Suit
and filed written statement before the
learned trial court and specifically denied
the plaint of the plaintiff stating that
Smt.Ram Kali was not the wife of
Shambhu Dayal and she had never
inherited the property of Shambhu Dayal.
The name of the mother of the petitioner
was Smt. Shanti Devi and the petitioner
along with Smt. Shanti Devi had jointly
inherited the property of Shambhu Dayal.
No agreement to sell was ever executed by
Smt. Shanti Devi. In fact an agreement to