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1958 DIGILAW 31 (ALL)

Radhey Lal v. Ram Kishore

1958-01-30

GURTU, ROY

body1958
JUDGMENT Roy, J. - This revision is by the Plaintiff against an order refusing an amendment of his plaint. 2. A preliminary objection has been taken before us upon the basis of a Full Bench decision of this Court in Mst. Suraj Pali v. Arya Pratinidhi 1936 AWR (H.C.) 776 that no revision lies from an order refusing to allow an amendment of a pleading. This preliminary objection, in our opinion, must prevail. But the circumstances of the case require us to observe that the Plaintiff will not be precluded from putting the matter which he wishes by this amendment application to be put before the lower Court by way of a replication to the Defendant's written statement, and the Defendant will have the chance of putting in a rejoinder if such a procedure is adopted by the Plaintiff in the court below. In support of this observation we have just to make a brief reference to the facts of the case as alleged. 3. The Plaintiff in the case is one Radhey Lal son of Chhotey Lal who was one of sons of Deep Chand. Deep Chand had another son of the name of Budh Sen who had a widow Smt. Ram Piari alias Smt. Ram Sumarni. Deep Chand was survived by Budh Sen ; and Budh Sen in turn was survived by Ram Piari. Ram Piari is also since dead. The Plaintiff alleged in the plaint that the property in suit belonged to Deep Chand; that Deep Chand made a bequest of this property by a document dated 16-3-1903, in favour of Budh Sen; that after the death of Budh Sen, the property was inherited by Ram Piari and after Ram Piari's death it came to the Plaintiff as a reversioner. It was further stated in the plaint that the Defendant was setting up title under a document alleged to have been executed by Ram Piari and that that document was not binding upon the Plaintiff. The allegation in the plaint that Deep Chand was the owner of the property was denied in the written statement. In the written statement the Defendant contended that the property belonged exclusively to Ram Piari alias Ram Sumarni and that she was therefore entitled to transfer this property to the Defendant by a sale deed in order to defray her expenses for pilgrimage. In the written statement the Defendant contended that the property belonged exclusively to Ram Piari alias Ram Sumarni and that she was therefore entitled to transfer this property to the Defendant by a sale deed in order to defray her expenses for pilgrimage. After the written statement was filed the Plaintiff moved the application for amendment of the plaint. The Defendant filed a sale-deed after his written statement was made. That sale deed indicated that it stood in favour of Budh Sen and Smt. Ram Sumarni. When the Plaintiff examined the sale-deed he, in the light of the will that had been executed, tried to raise the plea that the sale in favour of Budh Sen and Ram Piari was benami and that the real owner was Deep Chand. A further allegation was made in that application for amendment to the effect that even if Deep Chand was not to be regarded as the real owner ; the property belonged halt and half to Ram Piari and Budh Sen ; and that in any event the right of Budh Sen would devolve upon the Plaintiff. These facts the Plaintiff could not have pleaded in his original plaint in anticipation of what the Defendant was going to allege to in his written statement without knowing the contents of the sale-deed. A rule of pleading does not require allegations to be made in anticipation of the opponent's answer. In any event after the written statement had been made by the Defendant and the sale-deed was produced in court, the Plaintiff could by way of replication make the averment that the sale-deed was benami and that the real owner was Deep Chand. 4. O. VI, R. 7 of the CPC provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. The general principles on which the system of pleadings is founded may therefore be stated as follows: (1) The Plaintiff by his statement of claim alleges the material facts on which he relies in support of his case. The general principles on which the system of pleadings is founded may therefore be stated as follows: (1) The Plaintiff by his statement of claim alleges the material facts on which he relies in support of his case. (2) The Defendant, in his answer thereto, delivers a defence in which he may take all or any of the following courses: first, he may deny or refuse to admit the facts stated by the Plaintiff; secondly, he may confess or admit them, and avoid their effect by alleging fresh facts which afford an answer thereto ; thirdly, he may admit the facts stated by the Plaintiff, and may raise a question of law to their legal effect. If the Defendant adopts the first or third of these courses, a question of fact or law is at once raised between the parties. (3) If the Defendant adopts the second of the three courses, the Plaintiff may reply-first, by denying the fresh facts alleged by the Defendant ; or secondly, by admitting them, and alleging other facts which avoid their effect or thirdly by raising a question of law as to their effect. (4) If the Plaintiff pleads a reply of the second kind, that if he replies by way of confession and avoidance, the Defendant has the same courses open to him in pleading a rejoinder. 5. Now in this case the Defendant alleged fresh facts regarding the interest of Smt. Ram Sumarni in this property. The Plaintiff could therefore by way of replication allege those facts which entitled him to succeed in his contention that the real owner of the property was Deep Chand. The alternative case made out in the application for amendment arose out of the pleadings of the Defendant and those pleadings the Plaintiff could not anticipate earlier than the filing of written statement. There was nothing inconsistent between what was alleged in the application for amendment and the previous pleading of the Plaintiff made out in his plaint. 6. Under the circumstances, although we hold that no revision lies and we dismiss the revisional application with costs, we would like to observe that the Plaintiff can still file a proper application by way of replication to the pleadings made by the Defendant in his written statement and the Defendant will have the right to file a rejoinder thereto.