Smt. Sita Devi and Others vs Nitin Gupta and Another

Verma, J.—The present revision petition has been preferred against the order dated 19.2.2000 in the civil suit No. 45/99 passed by Additional District Judge No. 1, Jaipur City, Jaipur whereby the application of plaintiff for amendment in plaint filed under Order 6 Rule 17 CPC has been dismissed mainly on the ground that the amendment will amounl to inconsistent plea, nor it would be relevant for the purpose of deciding the controversy in suit and that the amendment will change the nature of the suit.

(2). Counsel for petitioner submits that in the facls mentioned in the plaint in regard to dispute aboul the property neiiher it. changes the nature of the suit, nor it is inconsistent with the pleading or ai the mosl even the amendment is allowed it will amounl to alternative plea.

(3). The facts of the case, as staled in the order, are that the suit was filed by plaintiff for cancellation of sale deed dated 1.5.98 and to deliver the possession of the properly in dispute. The suit was filed for declaration as well as permanent injunction. The parties are in blood relation. In the suit il was stated lhat the plol No. 56 was allotted to late Kalyan Sahai s/o Pratap ji by Ramnagar Housing Society and Kalyan Sahai had constructed the building on the said plot from his own expenses. The dimenlions have been given in the suit. Kalyan Sahai had died on 19.4.83. II was stated thai the defendant No.2 namely Kailash Kumar Sharma s/o Kalyan Sahai without consent and permission of other share holders had sold the house wilhoul getting the property partitioned and lhat he had no right lo sell the plot and building in queslion. Therefore prayed that the sale-deed dated 1.5.98 be cancelled. It is menlioned in para No. 7 of the plaint thai the property in queslion could not have been sold as it was unparlitioned anceslral properly.

(4). In the application for amendment under O.6 R. 17 CPC il was menlioned that at the lime of purchase of plol said Kalyan Sahai was a law paid employee of Eleclricity Board and he was not in a posilion to purchase the house, and therefore Kani Devi and Pratap ji after partitioning their immovable properly had given certain amount to Kalyan Sahai & Prabu Dayal and they both purchased the properly from that money. Therefore, the property in queslion has been purchased from the ancestral money. It is slated lhal by inadverlance Ihis facl had not been mentioned in plaint, which fact is required to incorporate. However, the relief claimed in the suit will not be changed.

(5). Counsel for petilioner relies on the judgment in case of Akshaya Restaurant vs. P. Anjanappa and another (1), wherein the amendment in plaint taking definite stand lhat defendant had entered into agreement for sale of suil land wilh defendant modified with the averment lhat defendant had entered into agreement wilh plaintiff for development of suil land. It was held by the Apex Court that''even the admission can be explained and even inconsislant pleas could be taken in the pleadings. It was observed in para No.5 of the judgment:-

"We find no force in the conlention. IE is settled law thai even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It was observed in para No.5 of the judgment:-

"We find no force in the contention. It is settled law the even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court is exercising its power u/s 115 CPC in permitting amendment of the written statement."

(6). Reliance has also been placed on the judgment in case of A.K. Gupta and Sons Ltd. vs. Damodar Valley Corporation (2), wherein it was held that in normal course, the amendment should not be allowed to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of 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 expiry of the statutory period of limitation.

(7). Counsel for respondent relied on the judgment in case of M/s. Modi Spinning & Weaving Mills Co. Ltd. and another Vs. M/s. Ladha Ram & Co. (3), wherein it was held that inconsistent and alternative pleading can be made in pleadings but seeking amendment to displace the plaintiff from the admissions made by defendant in written statement is not permissible.

(8). Reliance has also been placed on judgment in case of Vaidhya Shyam Sunder Joshi vs. Jain Vishwa Bharli Ladnu & Ors. (4), Mrs. Nirmal Sethi & others vs. Deep Chand Anand & others (5), and Heeralal vs. Kalyan Mal & Ors. (6), wherein it was held that the admission once made cannot be allowed to be withdrawn.

(9). In the present case, in my opinion, there is neither any admission nor any inconsistent plea is being taken. Evern though the suit relates to cancellation of sale deed of ancestral property and the amendment is being sought with the same rejief. In the plaint it was mentioned that the suit property is ancestral properly and had been purchased and constructed by Kalyan Sahai from the his earning. The amendment is being sought to the effect only that Kalyan Sahai had spent the money which he had received because of partition of certain ancestral property mentioned in the application.

(10). After hearing learned counsel for the parties and going through the impugned order, i am of the opinion that the trial court has not exercised its jurisdiction in accordance with law. There was no new case made out by the amendment being sought. There is force in the submission of counsel for petitioner.

(11). For the reasons mentioned above, the impugned order of the trial court dated 19.2.2000 is set aside. The amendment application is allowed.

(12). With the above observations, the revision petition is allowed.