1. Third party can't seek amendment in suit. Amendment can be only done by plaintiff and defendant in their plaint or counter claim respectively
Amendment of Schedule properties in partition suit by third party
Hello Experts. In a partiition suit of Joint properties. There were certain discrepancies on the Schedule properties, in terms of exact extent and the boundaries of the property. Because of discrepancies certain 3rd party properties(alienated via gift/sale deed from the same ancestor) are getting included in schedule causing fresh litigation with joint property holders. A preliminary decree has been ordered with allocation of ratios with these discrepancies in schedule properties . An Advocate commisioner warrant was ordered as part of final decree and Advocate Commissioner has reported these discrepancies and said it cannot be partiitoned . Finally Final decree plea was dismissed as it cannot be partiitoned with such anomalies and allowing liberty to apply for fresh petition. my questions : 1 Under what provisions can the 3rd party ( not a party to the suit as petitioner or respondent) seek an amendment to the schedule properties of suit. 2. Should he approach high court for relief ? 2. Can this be done now before any fresh application of Final decree by joint property holders.
Asked 4 years ago in Property Law
Religion: Hindu
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8 Answers
Third party being bonafide purchaser of value can file suit under provisions of specific relief act to rectify the mistake in sale deed
2)
He may file a suit before a court under Section 26 of Specific Relief Act 1963. The law provides for relief to parties in case the real intention of the party is not properly reflected in the documents executed because of a bona fide mistake of fact.
. The court can direct the rectification of an instrument, if it is satisfied that the deed does not express the real intention of the parties. This relief is entirely discretionary.
3) There is no specific period of limitation fixed for filing the suit for rectification. Thus the residuary Article- 113 is applicable.you ought to file suit within three years from the date of the sale deed. From the date of the sale deed itself, the time starts to run for filing the suit
Can a defendant seek an amendment to the schedule properties as described without Filing decree petition ?
Asked 4 years ago
defendant can make application for amendment of the schedule properties in the partition suit
Properties of third parties are included in a suit for partition and application for final decree is dismissed on that ground.
- The third party can file an application under Order I Rule 10 (2) of CPC and join the suit as pro forma plaintiff seeking to striking out to his properties from schedule by way of amendment of plaint under order VI Rule 17.
- The application is to be filed in the same Court.
- The right time to submit such application is now.
This are the answers to particular questions. But as the application for final decree is dismissed, it is for the original parties to the suit to make such application for amendment of schedule failing which their suit is liable to be dismissed basing on report of commissioner.
In a partition suit all plaintiffs and defendants have interest in division of schedule of properties. A defendant have every right to make such application for amendment.
Only through counter claim
Order 1 of the Civil Procedure Code, 1908 addresses the varied issues concerned with the first and most prominent ingredient of civil suits: parties to a suit. This encompasses questions of addition, deletion, substitution, transposition as well as non-joinder and misjoinder of parties to a suit. The parties in a civil suit are the plaintiff i.e. the person who brings an action for his rights and the defendant i.e. the person against whom such rights are claimed. However, there may arise a situation wherein, upon institution of a suit, it may be realised that in addition to the existing parties in the suit, there may be persons whose presence may be material to effectively determine the questions arising from the subject-matter of the suit. Such situations are rectified by “joinder of parties either upon application by an existing party to the suit or suo motu by the court before which the civil suit is in lite.
1. Order 1 Rule 10 of Code of Civil Procedure (herein after referred as C.P.C.,) enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions of law.
2. He can file a petition on the above lines before the same court in the same suit.
3. It can be filed at any stage of the proceedings
The only course open to the contesting defendant is to design the pleadings in his/her written statement to suit his/her claim or defence, but such a defendant cannot seek amendment of the plaint and/or the plaint schedule.
However, written statement filed by the defendant by taking contrary or contradictory stands can be permitted in as much as the written statement is a part of it. Relying on Rajesh Kumar Aggarwal v. K.K. Modi where it is held that a part of Order 6, Rule 17 CPC is mandatory and the other part is directory and the Court while considering an application for amendment should not go into the correctness or falsity of the case in the proposed amendment and as the case of the defendants fall under second part of Rule 17 of Order 6 CPC, which mandates the Court to allow amendments which are necessary for the purpose of determining the real question in controversy between the parties, and as the controversy in the suit relates to the title of the plaintiff to the plaint schedule property, the trial Court rightly allowed the petition for amendment filed by the defendants.
Dear Client,
you may file application for amendment of plaint and the decree containing the Schedule of property.It was held by Supreme Court of India in Peethani Suryanarayana & Anr vs Repaka Venkata Ramana Kishore & Anr 2009, an application for amendment of plaint is maintainable after passing of a decree. Entertainment of an application for amendment of plaint after a decree is passed may be permissible in law and Amendments, which do not affect the interest of the other parties, for a bonafide purpose and for effective execution of the decree, should be allowed.
Thanks & Regards
