1996 (1) TMI 459

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....tuted Partition Suit No.24/88 in the Court of Subordinate Judge, Aurangabad for partition of certain properties. Respondents 16 to 20 herein filed written statement on June 15, 1988 wherein they pleaded that Ramdeo Singh had executed and registered a gift deed in their favour on July 28, 1978 bequeathing the properties covered thereunder. They became owners of those lands and the appellant is boun....

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....merely seeking to avoid the gift deed executed which was detrimental to appellant's right, title and interest in the property. Therefore, the amendment does not alter either the character of the suit or the nature and the relief already sought, viz., partition of the property. Shri Sanyal, the learned senior counsel for the respondents, contended that the appellants had lost the right to seek ....

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....crued rights are taken away by amendment of the pleading, the Court would refuse the amendment. This Court in Laxmidas Dahyabhai Kabarwala vs. Nunabhai Chunilal Kabarwala [(l964) 2 SCR 567 at 582) held thus: "It is, no doubt, true that, save in exceptional cases, leave to amend under 0.6, r.l7 of the Code will ordinarily be refused when the effect of the amendment would be to take away from....

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.... made in the written statement to treat it as a plaint originally instituted. The amendment which was sought to be made was treated to be clarificatory and, therefore, this Court had upheld the amendment of the written statement and treated it to be a cross suit. The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to ....