Smt. Rajshree Tiwari vs Smt. Sarju Bai

Alok Aradhe, J.—With the consent of parties, the matter is heard finally.

In this writ petition under Article 227 of the Constitution of India the petitioner has assailed the validity of the order dated 06.4.2011 passed by trial Court by which the application for amendment of the plaint has been allowed.

Facts giving rise to filing of the writ petition, briefly stated, are that the respondent No. 1 filed the suit, inter alia, on the ground that the defendant No. 1 is the wife of her cousin and defendants No. 2 & 3 are sons of Radheshyam who was husband of defendant No. 1. It was further pleaded that father of plaintiff, namely, Laxman Prasad from his own earnings acquired the land admeasuring 12.12 acres. However, Radheshyam got his name mutated in respect of the land admeasuring 2.452 hectares. Accordingly, the plaintiff filed the suit seeking the relief of declaration and injunction.

The defendants filed written statement in which the claim of the plaintiff was denied. It was pleaded that the land in question is an ancestral land and was recorded in the name of Laxman Prasad as he was ''Karta'' of the family. It was further pleaded that in the partition the suit land fell to the share of Radheshyam.

Thereafter, the plaintiff during the course of the trial, filed an application for amendment of the plaint. By way of proposed amendment the plaintiff wanted to incorporate the plea that suit land is an ancestral land and in partition, Laxman Prasad, namely father of the plaintiff was allotted less land. The aforesaid application was rejected by the trial Court vide order dated 06.4.2011.

Learned counsel for the petitioners submits that the trial Court ought to have appreciated that the proposed amendment would change the nature of the suit and is not clarificatory in nature. On the other hand, learned counsel for the respondent No. 1 has supported the order passed by the trial Court.

I have considered the submissions made by learned counsel for the parties. In Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, it has been held that if proposed amendment fundamentally changes the nature and character of the suit, the same should not be allowed. In the backdrop of aforesaid well settled legal position, the facts of the case may be seen. The plaintiff has initially filed the suit for declaration and permanent injunction on the ground that the land in question is a self acquired property of Late Laxman Prasad and accordingly, the relief of declaration and permanent injunction was sought. However, later on, by way of proposed amendment, the plaintiff stated that the land in question is an ancestral land and in partition Laxman Prasad was allotted less land. Thus, the proposed amendment, if allowed, would change the nature of the suit and is inconsistent with the case which was initially set up by the plaintiff in the plaint. The plea which is sought to be taken by way of proposed amendment is inconsistent plea. It is also pertinent to mention that plaintiff has nowhere disclosed in the application for amendment as to why the aforesaid plea, which is sought by way of amendment, could not be made initially. Thus, the application for amendment was not made with due diligence and is, in fact, an after thought. The judicial discretion to deal with the prayer for amendment has been exercised by the trial Court capriciously. The order passed by the trial Court suffers from an error apparent on the face of record. Therefore, the same cannot be sustained in the eye of law. Accordingly, it is quashed.

In the result, the writ petition is allowed.