JUDGMENT Janardan Sahai, J.
1. A suit was filed by the plaintiff-respondent Gulam Abdul Qadir Alvi against the petitioner for injunction and declaration as Sajjada Nashin of Khankah Faizul Rasool. The plaintiff's case is that after the previous Sajjada Nashin died there was an election by the executive committee in which the plaintiff respondent was elected as Sajjada Nashin. The plaintiff-respondent filed an application for amendment of the plaint to challenge the Will said to have been executed by the alleged previous Sajjada Nashin on 24.12.1991 in favour of the defendant petitioner. By order dated 5.4.2003, the amendment application has been allowed by the trial court. A revision against that order filed by the petitioner was dismissed on 26.8.2003.
2. Learned counsel for the petitioner has made two submissions. Firstly, the amendment sought, changes the nature of the suit and secondly, it is time barred as the plaintiff had knowledge about the will. The contentions may be dealt with in the order in which they have been made. I am not inclined to hold that the nature of the suit would change. The case of the plaintiff is that the office is elective and he is Sajjada Nashin on the basis of election after the death of the previous Sajjada Nashin. The authority to appoint the defendant as Sajjada Nashin by Will itself has been challenged. As the Will has been relied upon by the defendant, the question in view of the defendant's pleadings, whether the Will creates rights in favour of the defendant may have to be decided even on the existing pleadings. In the circumstances the amendment does not change the nature of the suit. The Will, it is said, which is being relied upon by the petitioner defendant appointing him as Sajjada Nashin casts cloud upon the title of the plaintiff and as such, the amendment sought to challenge the said Will does not change the nature of the suit. The suit still remains a suit for declaration that the plaintiff is Sajjada Nashin of the Khankah. If the Will is found to be null and void the cloud on the title of the plaintiff as Sajjada Nashin would be removed.
3. As regards the objection that the relief claimed is time barred it is open to the petitioner to take that plea by an additional written statement. Reliance is placed upon the decision of A.K. Gupta and Sons v. Damodar Valley Corporation, AIR 1967 SC 96 (V 54 C 16), by the learned counsel for the petitioner in support of the contention that the amendment in pleadings cannot be allowed if such case is time barred and upon Modi Spinning and Weaving Mills Co. Ltd., and Anr. v. Ladha Ram and Co., (1976) 4 SCC 320 and also upon B.K. Narayana Pillai v. Parameswaran Pillai and Anr., 2000 (1) SCC 712. In Damodar Valley case, the amendment sought was allowed and reliance was placed therein upon L.J. Leach and Co. v. Jardine Skenair and Co., AIR 1957 SC 357 and upon the Privy Council decision Charan Das v. Amir Khan, AIR 1922 PC 249, in which amendment for adding a time barred claim was allowed. It was held that as a general rule a party is not allowed to set up a new case or a new cause of action when a suit on a new cause of action is barred. Where, however, the amendment does not constitute a new cause of action or raise a different case but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after the statutory period of limitation. In Modi Spinning and Weaving Mills it was held that if the amendments were allowed it would amount to withdrawal of an admission and setting up of an entirely new case and would cause prejudice. The case is distinguishable on facts.
4. That apart, it is stated in the amendment application that the plaintiff had no knowledge of the Will when the suit was filed and it was only after the written statement that the plaintiff came to know of the Will. If this averment is to be believed, the challenge to the Will could not have been made in the plaint, and it would then be merely a question of considering the effect of the delay that has taken place after the filing of the written statement. If the plea being raised that the Sajjada Nashin had no authority to appoint his successor is accepted the Will itself would be void. The amendment has, therefore, rightly been allowed. Delay alone is not fatal. Even otherwise, it is open to the applicant to file a written statement taking up the plea of limitation. That was the view taken by the Apex Court in Raghu Tilak D. John v. S. Rayappan and Ors., 2001 (1) JCLR 657.
5. Where a plaintiff seeks declaration of his rights, it is not necessary for him to challenge all such deeds even though in his knowledge which according to his case would, if accepted, be null and void but when such a deed is relied upon by the defendant as conferring title upon him, the Court has discretion to allow an amendment in the plaint to challenge such deed. In such cases, the party relying upon such a document which on the plaintiff's case, if accepted, be void would not acquire any vested right and the question of limitation may not really arise. The decision in B. K. Narayan Pillai's case, that an amendment which defeats the right of a party accrued by lapse of time relied upon does not, therefore, apply, to such cases. In such cases, the question about the validity and effect of such a deed upon the rights of the parties may arise upon the defendant's case itself as he would have to prove the deed through which he claims his rights and it would become necessary for the Court to adjudicate upon the point irrespective of the amendment. The amendment challenging the deed in such cases merely reflects the plaintiff's view point upon a document which is the sheet anchor of the defendant's case and in respect of which the Court may have to adjudicate even in the absence of a relief to set aside it. The amendment may rather facilitate the Court in effective adjudication of the controversy by bringing into focus the infirmities from which the document suffers. The position would be different if the deed is voidable and unless set aside, binding upon the plaintiff.
6. No ground for interference under Article 226 of the Constitution of India is made out. The writ petition is dismissed.