Smt. Bhagwanti vs Surjit Kaur and Others

J.V. Gupta, J.—This petition is directed against the order of the Trial Court dated February 22,1989 whereby application for amendment of the plaint was declined.

The plaintiff filed the suit for declaration with the prayer that Killa No.66/2-2 measuring 7 Kanals 11 Marias has been mentioned in the written statement inadvertently whereas in fact, it should have been Killa No.51 -6-2 (3-16), 15-1 (4-0) measuring 7 Kanals 16 Marias in the plaint. The application was contested on behalf of the defendants primarily on the ground that the plaintiff could not be allowed to withdraw the admission made in the plaint and secondly the application is barred under 2 Rule 2 of the CPC as the relief now sought to be claimed will be deemed to have been abandoned. The trial Court found that the application for amendment is without any merits as the proposed amendment, if allowed, would take away the rights from the defendants which have accrued to them by admissions made by the plaintiff in her plaint.

The learned counsel for the plaintiff-petitioner submitted that no right has accrued to the other party. The application for amendment was filed at the earliest after the framing of issues. According to the learned counsel, even a separate suit could be filed for the Khasra number now to be changed to avoid multiplicity of proceedings, the amendment in the plaint will serve the purpose. In support of his contentions, he referred to M/s Ganesh Trading Co. V. Moji Ram, 1978 PLR 458 and Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, On the other hand, the learned counsel for the defendant respondents submitted that in case the amendment is allowed. In support of this contention, he referred to Randhir Singh Vs. Kamlesh and Others, Surjit Singh v. Kartar Singh (deceased) Rep. By L.Rs. and another, 1987 PLJ 184 and Harbans Singh Vs. Mehnga Singh and Others,

After hearing the learned counsel for the parties, I am of the considered view that the trial Court has acted illegally and with materials irregularity in the exercise of its jurisdiction. The amendment sought is that instead of Killa No.67-23-2 measuring No.51/6/2 (3-16), 25/1 (4-0) measuring 7 Kanals 16 Marias in the plaint. In the sale deed, the earlier Khasra number is specifically mentioned whereas Killa number sought to be amended as such is not mentioned and is included in Khewat No. 165 Khatoni No.313. According to the plaintiff though half share of the land comprised in Khewat No. 165 has been sold to the defendants but nor out of the Khasra number now sought to be pleaded by way of amendment. On behalf of the defendants, it has been contended that the other half share belonging to the son of the plaintiff was also sold to the defendants subsequently and, therefore, this plea was not available to the plaintiff. Whether on merits the plaintiff succeeds or not is not to be gone into at the stage. Since the plaintiff wants a declaration that in the sale deed in Khewat No. 165, Khatoni No.313 Killa No.51 -6-2 and 15-1 are ''included but half of that was never sold by her as she has already raised construction thereon. Thus in the facts and circumstances of the case, the said amendment was necessary fro determining the real controversy between the parties. The question of any admission as such made by the plaintiff in the plaint did not arise. In any case the defendants could be compensated by costs. Consequently, this petition succeeds, the impugned order is set aside and the applicant for amendment is allowed on payment of Rs.330 as costs.

In order to expedite the proceedings in the suit, it is directed that the parties will lead evidence at their own responsibility though, Dasti summons may be given.if so desired as contemplated under Order 16 rule 7-A of the Code of Civil Procedure.

Since further proceedings were stayed by this Court at the time of motion hearing the parties are directed to appear in the trial Court on 13.12.1989.