Balwan Singh vs Dharam Singh

R. N. Mittal, J. (Oral)

This revision on petition has been filed by Balwan Singh defendant against the order of the Senior Sub Judge, Sonepat by which he allowed the amendment of the replication.

Briefly the facts are that Ram Sarup was the owner of the property in dispute. He suffered a decree on 29th July, 1980 in favour of Balwan Singh defendant (revision petitioner). Ram Sarup died on 3rd July, 1981. The plaintiffs instituted a suit for possession of the land on the ground that they were the heirs of Ram Sarup deceased. The suit was contested by Balwan Singh defendant, who inter alia pleaded that the decree, if proved, was null and void as it was passed on account of collusion between Balwan Singh defendant and Ram Sarup deceased. Various other pleas were taken by the parties and as many as 11 issues were framed. At the time of arguments in the case, an application was filed by the plaintiffs for amendment of the replication whereby they sought to take a plea in the replication that the decree was obtained by defendant No. 1 by playing a fraud on Ram Sarup deceased. That application was allowed by the trial Court. Hence this revision.

It is contended by Mr. Kapoor, learned counsel for the petitioner, that by allowing the amendment the Court allowed the plaintiffs to set up a case which could not be done. I have duly considered the argument and find force in it. As already mentioned above, the plea which was taken earlier by the plaintiff was that the decree obtained by the petitioner in collusion with Ram Sarup deceased. Now they want to set up a plea of fraud. Both the pleas are contradictory to each other. It is well settled that a party to the litigation cannot be allowed to set up absolutely a different case by way of amendment in the pleadings. In the above view I am fortified by the observations of the Supreme Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and others, AIR 1965 S.C. 1008. In that case also the plaintiffs were allowed the amendment of the plaint and were permitted to take the plea of fraud. The Supreme Court observed that the plaintiffs were making out a case of fraud for which there was not the slightest basis in the plaint as it originally stood and, therefore, the amendment should not have been allowed.

Faced with the abovesaid situation Mr. Sarin, learned counsel for the respondents, sought to argue that the revision should not be allowed as the petitioner has not suffered any injury on account of the amendment. I do not find any substance in this contention. The case was fixed for arguments when the amendment was allowed. The plea now sought to be taken is contradictory to the plea taken by the plaintiffs. In the circumstances it cannot be held that the defendantpetitioner will not suffer any irreparable injury in case the plaintiffs are allowed to amend the replication.

For the aforesaid reasons I accept the revision petition with costs, set aside the order of the trial Court and dismiss the application for amendment. Counsel fee Rs. 200/.

The parties are directed to appear in the trial Court on 5.8.1985.