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Sandeep Gupta (Manager)     09 January 2019

Change in prayer and its consequences


1. I bought the property as third party from one family.

2. Later case is filed by daughter for separate partition and possession from her joint family property stating that it was her father joint family property and the family is HUF and in possession of the property. After death of her father in 1998 she as a copersonery of the family is entitle to her share. She also prayed for consequential reliefs and permanent injunction stating that the sale deed is executed behind her back and not binding on her.

3. I have file the IA for insufficient fee paid by plaintiff stating that sale is not binding on her is the indirect way of seeking the cancellation of sale deed to evade the court fee.

4. Court has rejected my application with conclusion that plaintiff has stated that the sale is executed behind her back and not binding on her. She has not prayed for the cancellation of the sale deed. Hence court fee paid is sufficient.

5. After that plaintiff has also filed the IA to amend the plaint to correct two mistakes which was allowed by the court.

6. Now important point is that along with those corrections, plaintiffs have also cleverly added in prayer to declare sale deed as null and void without such amendment approved by court. However, earlier she has evaded the court fee stating that it is not binding on her.

7. Subsequently case was dismissed for some other reason because it was barred by law since father was not alive as on Sept 2005, and daughter had no rights to claim in Joint family properties based upon the SC order in prakesh and Phulavathi case.

8. Now she has filed an appeal in HC against the dismissal of her case. In that appeal also she is seeking sale deed to declare null and void and it is not binding on her.

My question is very specific to the change in prayer to declare sale deed Null and void. - Lower court has already decided the court fee issue in her favor. - Can she modify the prayer later to seek sale deed null and void after court fee was decided by the court and that is also without our and court knowledge.  What is the consequences at this stage when case is in HC because she can’t remove the prayer from amended plaint which was done in lower court.

What is the option I have at this stage?

 6 Replies

Shashi Dhara   09 January 2019

When amendment was made u have to objected that show to theknoweledge of u show it in high court that the illegal amendment portion.

Sandeep Gupta (Manager)     09 January 2019

Under which section I can file an application. will that appeal be rejected because prayer can not be changed like this. 

As far as objection is concern, there was no such amendemnt proposed in the application. it is filed while amendemnt plaint was filed in the court witout our knowledge. 

It may be that we coud have got the certified copyimedeately and verified which we have missed.



Shashi Dhara   09 January 2019

When it came to Ur knowledge at once u shud have to file another application to reject the amended plaint in trial court.

Sandeep Gupta (Manager)     09 January 2019

Lower court has already dismissed the case and she has appealled in high court therfore I have applied for the certified copies of the entire documents from the lower court in which this ammended plaint was also given.  When I was going through the amended plaint I have noticed this modifications. However, In HC appeal also she has asked in one para to declare the sale deed as null and void.

Can we file an application under order 7 rule 11 to reject the appeal/amended plaint in high court since now the matter is pending before the High court. 



Shashi Dhara   15 January 2019

In argument u show it.

Sandeep Gupta (Manager)     16 January 2019

What will be the impact of telling in the argument. Will the High Court take up the appeal or reject the appeal because court fee matter was already decided by the lower court in its order for one of the earlier IA filed by me in court came to the conclusion that “the plaintiff is not seeking the cancellation of the sale deed. In fact, she is saying that the sale deed is not binding on her. Hence the court fee paid is sufficient". Now if she is seeking the sale deed to be null and void than court fee would have been paid accordingly based upon the market value. 

My basic question is that how the High Court view this kind of things? 


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