I have filed suit for partition of open land against brother and one builder, who purchased entire ancestral property, from my brother due to his only name is recorded on property card, ignoring my share, arosed out of instate demise of mother. While filing the suit, my advocate forgotten to mention under any paragraph and in prayer clause also, that, if court comes to conclusion that, I have a share then Hon'ble Court may please issue the order /directions to demolition the building constructed by builder on my share. Secondly a new prayer to be added that the instrument (sale-deed) should be declare as null and void / cancle under specific relief Act Section 31. In view of above two prayers, my advocate is suggesting me to file a new suit under specific relief act section 31, asking permission from previous court for filing of new suit, where the suit for partition is already pending. Most Important that the instrument is registered on 12.07.2016. According to my advocate , limitation of three years will attract on 12.07.2019, therefore, we have to take steps very fast. Therefore my question is as below. 1. instead of filing new suit, whether amendment for above two prayers will be easy or filing of new suit will give me justice. 2. What time limitation for cancellation of instrument under specific relief act section 31, is fixed for new suit, when we seek permission in first suit, unless which we cannot file a new suit as order 2 rule 2 of cpc is applicable.
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1) don’t file fresh suit
2) make application for amendment of suit to add 2,prayers
3) under order 2 Rule 2 Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
1. Amendment is a valid option.
2. 3 years
Both builder and brother are already parties to the existing suit as defendants
The proposed suit is also to be filed against same parties seeking relief of declaring the registered document as null and void and for demolition of building in the event your share in partition claim is decreed
If the requisite pleadings to the above effect are there in the partition suit then what fruitful purpose will be served by filing a new suit?
Instead if the trial has not yet commenced then you can apply for amending the plaint to include the 2 prayers
The defendants will obviously be given an opportunity to file additional WS
New suit will only prolong the matter
So its better to amend the plaint under Order 16 of CPC (plz check correct provision)
Hi,
The present application can also be ammended as per CPC.
In my opinion why to file new suit, file a amendment application if some thing is missing from the OS, filing number of suits will defeat the law so advise your counsel to amend the plaint earlier filed with an application for earlier hearing, in the meantime try to obtain the succession certificate from the competent court to establish that you are also the successor , this will easy your efforts.
Better withdraw the suit with liberty to file fresh suit. For same cause of action between same party another suit with different prayer may not maintainable.
Keep partition your main prayer, no limitation.
Try for amendment - these prayers may be allowed by amendment as Inadvertent Mistakes In The Plaint Cannot Be Refused To Be Corrected
Better u seek the detailed consultation by disclosing complete details in this case, so that exactly can be suggested to do.
1. In my opinion, it would be better that you file an amendment petition for both the issues instead of filing a fresh suit since both the issues are inter related to the existing suit.
2. The limitation is three years from the date of execution of the said sale deed which has been clearly mentioned by you in the partition suit itself.
Hence without wasting time you may file a petition seeking to amend the plaint and the prayer column suitably so that your issue is not barred by limitation.
Actually there is no necessity to seek for cancellation of sale deed since you are not party to it and also it is not binbding on you, hence you may thinkniot over again especially with regard to the cancellation of the sale deed alone.
Dear
Filing of new suit is not a good option you should file an application for amendment of plaint.
Order 2 rule 2 of CPC specifies that if plaintiff relinquish any of the his claim related to same subject matter then any further suit for that claim is not maintenable.
