Kalpana Choudhury And Another v. Debi Dayal Choudhary
1977-02-03
LALIT MOHAN SHARMA
body1977
DigiLaw.ai
Judgment 1. This civil revision applica-tion by two defendants is directed against the order passed by the trial Court allowing certain amendments in the plaint Mr. Ghosh appearing for the petitioners has stated that he is challenging by this application, only that part of the order where the Court has allowed the prayer for partition to be included in the plaint, 2. The suit originally was filed, inter alia, for eviction of the defendants. Dur-ing the pendency of the litigation, the present plaintiffs 13 to 21 claimed to be pendente lite transferees from plaintiffs 1 to 7 and 9 to 12 in respect of 95 per cent interest in the subject-matter of the suit and they were added as co-plaintiffs. Defendant No. 4 who is one of the peti-tioners, claimed to be a transferee of 5 per cent interest of plaintiff No. 8. The added plaintiffs applied for transposition of plaintiff No. 8 to the category of defendants and for certain other amendments including a relief for partition. 3. Mr. Ghosh has strenuously contended that by permitting the prayer of parti-tion to be included in the plaint, the nature of the case has undergone a change and it is not possible in the circumstances of the case to permit two wholly inconsistent pleas to be included in the plaintiffs pleading. He relied upon the decisions in Ma Shwe Mya V/s. Maung Mo Hnaung, (AIR 1922 PC 249); Divi Seshacharyulu V/s. Divi Lakshminarayanacharyulu, ( AIR 1946 Mad 105 ) and Municipal Corporation of Greater Bombay V/s. Lala Pancham, ( AIR 1965 SC 1008 ). 4. On behalf of the plaintiffs, Mr. Kamla Pati Singh argued that the necessity of incorporating this additional pra-yer arose out of the subsequent event, i. e., the claim of defendant No. 4 of joint title in the suit property. In view of that event the relief must be permitted to be moulded in such a way that it will fulfil the requirements of the case. He further stated that, if the court below has allowed the amendment with a view to avoid multiplicity of proceedings and in the interest of justice, this Court should not interfere with the order. He relied upon the decisions in Nair Service Society Ltd. V/s. K. C. Alexander, ( AIR 1968 SC 1165 ), L. J. Leach and Co.
He further stated that, if the court below has allowed the amendment with a view to avoid multiplicity of proceedings and in the interest of justice, this Court should not interfere with the order. He relied upon the decisions in Nair Service Society Ltd. V/s. K. C. Alexander, ( AIR 1968 SC 1165 ), L. J. Leach and Co. Ltd. V/s. Jardine Skinner and Co., ( AIR 1957 SC 357 ), Pirgonda Hongonda patil V/s. Kalgonda Shidgonda Patil, ( AIR 1957 SC 363 ) and Nichhalbhai Vallabhai V/s. Jaswantlal Zinabhai, ( AIR 1966 SC 997 ). 5. Mr. Singh appears to be right when he says that, if there is a development in the circumstances of a case, which ren-dered the original reliefs made in the plaint inadequate, amendment should be liberally granted. In the case of Nair Service Society, ( AIR 1968 SC 1165 ) (Supra) the principle was discussed at some length in paras. 29, 30 and 31. The case in Ma shwe Mya, (AIR 1922 PC 249) (Supra) relied upon by Mr. Ghosh was also considered in para 30. In none of the cases relied upon by Mr. Ghosh this aspect of the matter arose for considera-tion and they are, therefore, not helpful. In para 31 the Supreme Court, in the case of Nair Service Society, also emphasised the fact that the power of amend-ments was a discretionary one. In the case of L. J. Leach and Co., (AIR 1957 SC 3S7) (ibid) the Court observed that one of the factors to be taken into account is interest of justice. It was repeated in the case of Pirgonda Hongonda Patil, ( AIR 1957 SC 363 ) (Supra) and Nichhalbhai Vallabhai, AIR 1966 SC 997 (Supra) and then the Supreme Court observed that the object of the rule for allowing amendment of the plaint was to avoid multiplicity of suits. In the case before me there was a prayer in the original plaint for eviction of the defendants from the entire property.
In the case before me there was a prayer in the original plaint for eviction of the defendants from the entire property. If a decree for parti-tion is passed and executed, the ultimate result would be that the defendants may have, on failure to show any other right to remain in the property, to leave 95 per cent of the subject-matter of the suit This relief, therefore, does not exceed the prayer made originally in the matter of quantity, a term which has been referred to in several reported decisions. The Court has applied its mind fairly to all the facts and circumstances of the case and took a view in favour of the amend-ment, and, in the circumstances, I do not see any reason to interfere with the same. This civil revision application, therefore, fails and is dismissed but there will be no order, as to costs.