Siya Singh v. Mt. Sabjawati Kumari — 1963 DIGILAW 58 (PAT)

Judgment U.N.Sinha, J. 1. This application has been filed by defendant No. 1 of a title suit instituted toy the plaintiff for partition of some properties. It is directed against order No. 347, dated the 28th of June, 1962, by which the learned trial Judge has permitted the plaintiff to amend the plaint in some particulars. 2. What has happened is this: The hearing of the suit concluded before the learned trial Judge on the 9th of April, 1962, and the 8th of May was fixed for delivery of Judgment in the case. On the 19th of April 1962, the plaintiff filed a petition asking for permission to make certain amendments in the plaint. Then, it appears, the plaintiff filed two more petitions, one on the 14th of May and the other on the 22nd of June. Certain details were supplied by the plaintiff in the petition dated the 14th of May, and it was prayed by the petition filed on the 22nd Of June that the amendments may be allowed as given in detail in the petition filed on the 14th of May it may be stated that defendant No. 1 filed several rejoinders objecting to the proposed amendments. After hearing the parties, the learned trial Judge has permitted all the amendments, giving Rs." 30.00 as cost to each set of defendants. Liberty has been given to the defendants to file additional written statements if they so desire. Defendant No. 1 has come up to this Court. 3. It is contended by the learned Counsel for the petitioner that the proposed amendments should not have been allowed as the suit was an old one, having been instituted as early as in 1950. It is urged that the plaintiff has merely attempted to make up certain defects which had come into light in the arguments advanced in Court, and, therefore, no indulgence should have been granted to the plaintiff. Learned Counsel for the plaintiff opposite party has, on the other hand, urged that the court below has taken Into consideration all aspects of the proposed amendments, and when the learned trial Judge has exercised his discretion in favour of the plaintiff, the discretion should not be interfered with. Learned Counsel for the plaintiff opposite party has, on the other hand, urged that the court below has taken Into consideration all aspects of the proposed amendments, and when the learned trial Judge has exercised his discretion in favour of the plaintiff, the discretion should not be interfered with. It Is argued that most of the amendments were of a formal nature and the amendments seriously objected to by the learned Counsel for the petitioner in this Court were not sprung on the contesting defendants as a surprise in the court below, and the amendments proposed by the plain-tiff were merely for the sake of preciseness and clarification. 4. Having heard learned Counsel for the parties and having considered the order of the learned trial Judge, It appears to me that no case has been made out for interference, except with respect to the cost granted by the learned trial Judge. The proposed amendments have been seriously enumerated by the learned Judge as eight in number. There Is not the least doubt that the amendments mentioned by the learned trial Judge in serial Nos. 1, 2, a, 4 and 6 are of a formal nature: for instance, item No. 1 states that certain plots had been mentioned. In the plaint as appertaining to khata No. 37 and the proposed amendment mentioned that the khata number should be stated as No. 36 instead of No. 37. No serious exception can be taken to these amendments, although they have been proposed at a very late stage of the proceedings. Learned Counsel for the petitioner has seriously objected to the amendments enumerated by the learned trial Judge under serial Nos. 5, 7 and 8 which run thus : "(5) Khata No. 294, khasra Nos. 62/24, 75/37, 627/446 and 622/436 have been left in Schedule 1 and B of the plaint and the same be added. 7. It has not been written in which direction of the particular plots, the partition is sought. So It is prayed that the same be added. 8. 62/24, 75/37, 627/446 and 622/436 have been left in Schedule 1 and B of the plaint and the same be added. 7. It has not been written in which direction of the particular plots, the partition is sought. So It is prayed that the same be added. 8. The boundaries of all the plots in question given under Schedule B have been given by the 2nd amendment petition dated 14-5-62 and the 3rd amendment petition dated 22-6-62 and it is prayed that the boundaries be included in Schedule B of the plaint." Learned Counsel for the petitioner has specifically objected to these three proposed amendments, on the ground that such amendments ought not to have been allowed after the suit was pending in the trial court for a large number of years and when the facts stated in the proposed amendments were always within the knowledge of the plaintiff. Learned Counsel has relied upon a decision of the Privy Council and a decision of the Court at Simla for his argument in this context. The decision of their Lordships of the Privy Council, relied upon by the learned Counsel is the case of Ardeshir H. Mama V/s. Flora Sassoon, 32 Cal WN 953 : (AIR 1928 PC 208). It is argued that their Lordships of the Privy Council disallowed an amendment of a plaint when the suit was pending for four years in the trial Court. But it appears to me that the learned Counsel for the petitioner has relied upon this contention on too broad a principle, and the principle so argued is not supported by the decision relied upon. What their Lordships of the Privy Council stated with reference to the amendment proposed in that case was as follows:- - "For four years that suit had been pending as a specific performance action: the rights in these circumstances given to the plaintiff by sec. 27 (b) of the Statute, had made it impossible for the defendant by unconditional sale to deal with the property in suit. In other words the plaintiff had, in effect for four years and without any undertaking in damages on his part, held an a effective injunction against the defendants dealing with that property in derogation of his claim thereto as purchaser. In other words the plaintiff had, in effect for four years and without any undertaking in damages on his part, held an a effective injunction against the defendants dealing with that property in derogation of his claim thereto as purchaser. An amendment which deprived the Court of the power to compel him to accept a decree, on pain of having his action dismissed if he did not, was not one lightly to be granted." Therefore, it is difficult to hold that the only emphasis laid by their Lordships was on the fact that the suit was pending for four years. It appears that the real emphasis was on the fact that the nature of the suit was altered altogether by the, proposed amendment. Thus, in my opinion, it is difficult to accept the contention of the learned Counsel for the petitioner that mere delay should defeat the plaintiff. 5. The other decision relied upon, is the case of National Fire and General Insurance Co. Ltd. V/s. Mool Singh Gurdev Singh, AIR 1951 Punj (Simla) 227. This decision is also not directly in point. It is not correct to state that an amendment of the pleading was rejected in that case solely on the ground that the defendant, who was proposing an amendment of the written statement, had knowledge of the correct state of affairs much earlier. The fact will indicate that the defendants proposed amendment really failed on the ground that the defendant company in that case was guilty of suppressio veri in making the application under Rule 17 of Order 6 of the Code of Civil Procedure. It was so stated in the judgment. No doubt the previous knowledge of the facts incorporated in the proposed amendment was adverted to but that was not the sole criterion for rejecting the amendment in that case. 6. Coming to the amendments mentioned in serial Nos. 5, 7 and 8, quoted above, the matter stands thus. The plaintiff has prayed for an amendment of Schedules 1 and B of the plaint by asking that plot Nos. 62/24, 75/37, 627/446 and 622/436 appertaining to khata No. 294 may be added. The learned trial Judge has dealt with this matter in detail and he has stated that evidence in the case has already been adduced with respect to plot Nos. 75/37, 622/436 and 627/446. 62/24, 75/37, 627/446 and 622/436 appertaining to khata No. 294 may be added. The learned trial Judge has dealt with this matter in detail and he has stated that evidence in the case has already been adduced with respect to plot Nos. 75/37, 622/436 and 627/446. A document purporting to deal with this property has already been brought on the record and marked as Ext. A-1. It appears, however, that an attempt by defendant No. 1 to bring on the record a sudbarna deed with respect to plot No. 62/24 failed on an earlier occasion. The learned trial Judge has said that in view of the circumstances there ought not to be any objection to incorporating these four plots appertaining to khata No. 294 In the schedules of the plaint. I do not find any serious objection to the conclusion of the learned trial Judge. In the plaint as filed, there is mention of sudbharna deeds one of which has now been admitted as Ext. A-1. As stated earlier this document deals with three of the plots of khata No. 234. Therefore in my opinion, no injustice would be done to the contesting defendant if the plots mentioned in Serial No. 5 by the learned trial Judge are included specifically in the schedules of the plaint. 7. Coming to serial Nos. 7 and 8 which are more or less related to each other, it appears that the plaintiff now prays that she may be permitted to mention the direction of some of the particular plots which are the subject matter of partition and she may be permitted to give the boundaries of the plots mentioned In Schedule B of the plaint. Learned Counsel for the petitioner has contended that after arguments had been concluded in the case, the plaintiff has found out that her suit is likely to fail because of certain defects, and, therefore, she has proposed the amendments which are mala fide. It is, however, not possible to accept this contention, because after a detailed consideration of the points, the learned trial Judge has come to the conclusion that there is no absence of good faith on behalf of the plaintiff, nor would the proposed amendments change the nature of the suit. Learned Counsel for the petitioner has failed to show that the proposed amendments would change the nature of the suit altogether. Learned Counsel for the petitioner has failed to show that the proposed amendments would change the nature of the suit altogether. The suit with the amendments allowed would still remain a suit for partition between the par ties on record, and all that would happen after the amendments would be that four plots of Khata No. 294 would be specifically included in the Schedules and certain, clarifications would be made with respect to the direction and boundaries. The petitioner defendant would get sufficient opportunity, if he so desires, to rebut the facts brought on the record by the proposed amendments. That opportunity has already been given to him by the learn ed trial Judge. There is no doubt that the plain tiff has asked for amendment of the plaint at a considerably late stage, and the learned Judge has also come to the conclusion that the plaintiff should have been more vigilant; but by the amendments allowed no injustice will be done to the contesting defendant, which cannot be compensated by granting him costs thrown away. I am of the opinion, therefore, that no case has been made out by the petitioner for interference under sec. 115 of the Code of Civil Procedure, so far as the order of amendment is concerned. But it is clear also that the cost of Rs. 30.00 only allowed to the contesting defendant was an inadequate amount and I therefore direct that the petitioner defendant No. 1 would be entitled to receive Rs. 200.00 from the plaintiff for the amendments allowed by the learned trial Judge on the 28th of June, 1962. The plaintiff must deposit another sum of Rs. 170.00 in this respect, as she has already deposited Rs. 30/-, as indicated by order No. 350 dated the 4th of July, 1962 of the learned trial Judge, within a month from today. This sum of Rs. 170.00 may be deposited either in this court in favour of defendant No. 1 or in the court below. If this amount of Rs. 170.00 is not deposited within time, the amendment allowed by the learned trial Judge on the 28th of June, 1962, must be struck off. 8. With this direction, the application is dismissed. Under the circumstances the parties will bear their own costs of this Court.