You can make application for amendment of plaint
no need to file separate suit
New Prayers to be added by amending plaint or whether by separate suit?
In a partition suit, main prayer is prayed for physical partition and possession of ancestral open plot. The entire plot is sold by brother to one builder, ignoring plaintiff's right /share in said property. In said property, TC, refused to pass interim orders, for third party interest, to construct the suit property etc and therefore, taking advantage for rejection of application under 5, the builder started constructing, on suit property, which is so far undivided (suit is pending) property. Question : whether I can pray below mentioned prayers, apart from the above main prayer. Secondary prayers / ancillary prayers. for declaration that the said sale deed is not binding upon plaintiff, as well as on plaintiff's share. for cancellation of sale deed either whole or limited upto plaintiff's share. to demolish the construction either whole or existing on plaintiff's share, at the time of final judgment. /if I succeed in suit. please guide me - which prayers from above 3 , I can pray by amending the pending suit, in which I may get relief from the court at the time of judgment. OR. whether I can file separate suits for above prayers. Thanks.
Asked 6 years ago in Civil Law
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19 Answers
Thanks Sir. Awesome as usual. However, If I amend the plaint for prayers , (as mentioned in earlier post) then please advice /guide, whether TC will pass relief being the prayers are secondary or ancillary, in view of main prayer.
Asked 6 years ago
TC can pass orders granting reliefs prayed for
1. Yes in the partition suit you will have to seek declaration that the sale deed is null and void and not binding upon you.
2. To claim this relief you will have to make the developer the party to the suit as well.
3. Since trial court has refused your prayer for interim injunction you have te option of preferring an appeal before the court of district seeking similar relief and thereafter to the high court.
You can ammend your prayers provided it doesn't change the cause of action and nature of suit. Otherwise there is no harm
See you can add all three prayers in your suit, new suit is not required seek draft amendment for.amending prayers in the suit.
The court shall pass order keeping in view the earlier prayers and other prayers you are amending.
Yes he will give relief, amend immediately.
Recently SC has held amendment should be allowed to avoide multiplicity of litigation and to meet and of justice.
Amend prayer with cancellation of sale deed and recovery of possession.
Add the prayer to direct the defendants to execute and register necessary conveyance or transfer deed for transfer of Plaintiff's 1/3rd undivided share in her favour
As per the plaint averments, plaintiff avers that she is coparcenor having 1/3rd share in joint family property, then why to seek declaration for that?
Also if above prayer of executing transfer deed in favour of plaintiff for her 1/3rd share is allowed, then it automatically overrides the sale deed by which the brother sold entire property to builder. So no need to pray for cancellation of that sale deed between brother and builder and you also save on the court fees being demanded by registry
You can always pray that upon partition being granted of Plaintiff's share, any construction till then made on her share of land be directed to be demolished by the defendants at their own costs
All above prayers hinge on the main prayer of partition. So if that is allowed then consequently the secondary prayers would also be granted. However for that you would have to enforce the decree by filing execution application
Since you have filed the partition suit seeking partition and separate possession of your legitimate share ion the proeprty with metes and bounds and good and bad soil, you may have to go by that prayer alone.
All the three reliefs what you have mentioned are subsequent developments after filing of suit, hence you cannot seek said reliefs by filing an amendment petition to amend the plaint's prayer.
The suit will be decreed only on the basis of the status and to the reliefs sought at the time of filing the same and not on the basis of the subsequent developments.
The court may not permit you to make amendments to the prayer based on the subsequent developments even you may claim them to be secondary or ancillary, because there is no provision in law for that.
One of respected advocate from this forum has replied to my previous query that, I can amend the plaint but can not amend the prayers on the basis of subsequent developments." and court will pass the judgment only on prayers, which are mentioned at the time of filing the partioned suit." hence I am confused. please reply , whether prayer clause filed at the filing of suit, can be amended if there are subsequent developments in suit matter.
Asked 6 years ago
You can pray for amendment as the subsequent changes are pending the suit.
you can amend the plaint and also reliefs prayed for in the suit
You can ammend it as per subsequent development. The purpose of Ammendent is to being on record the changes which affect your case
Under which provision?
The original prayers have a foundation in the corresponding averments made in the plaint
So if the plaint is being amended to reflect subsequent developments, then why cannot additional prayers be added by amendment?
Yes,if certain court fee is payable for the additional prayers and if that is not paid, then the court would not rule on those prayers
Let me check cpc
Plz ask the concerned lawyer to state the applicable provision
Well, I do not agree with the expert who says prayer can not be amended. The amendment of pleading does include amendment of body of plaint or prayer and law does not make any difference whether amendment sought for is to be added in body or in prayer portion.
The advice of the ld expert certainly is not founded upon any principle of law or the well settled precedents of supreme court or high courts.
So ignore this advice and proceed as already advised.
Amendment of plaint means amendment of any portion of the plaint including prayer. Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made of the purpose of determining the real question or issue raised by or depending on such proceeding
Yes, don't be confuse amend the prayer also because as per order of the court your are amending the plaint to which prayer is a part and very as per the facts changed time to time.
- As per the information mentioned in the present query, makes it clear that there is a order not rejecting your prayer for now.
- Yes, you can change the pleadings in the plains, but surely you can’t change the prayer as the same has already been looked into by the Hon’ble judge.
- And after the order, the builder has started constructing the building which gives you another cause of action.
- You should Now file a separate suit for temporary injunction against the construction.