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2000 DIGILAW 212 (HP)

LAL SINGH v. PARVATOO

2000-08-07

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This revision petition is directed against the order dated 18.8.1999 passed by the learned Sub Judge, Ghumarwin whereby an application under Order 6, Rule 17 of the Code of Civil Procedure moved by the petitioner/plaintiff (here-after referred to as "the plaintiff") has been dismissed. 2. Brief facts of the case are that the plaintiff has instituted a suit for declaration that he and respondent/proforma defendant (hereafter referred to as "the proforma defendant" are owners in possession of the suit land and for injunction restraining the respondent/defendant (hereafter referred to as "the defendant") from interfering in the suit land in any manner. It is claimed in the plaint that the father of the plaintiff and proforma defendant was a non-occupancy tenant over the suit land and after his death it has been inherited by them. As the tenancy could be inherited only by the sons of the deceased, the defendant did not inherit the suit land and the revenue entries showing her as a co-sharer in possession of the suit land are incorrect. 3. The defendant and proforma defendant both filed a joint written statement and contested the suit inter alia on the ground that Roshan Lal deceased father of the plaintiff and proforma defendant and husband of the defendant, was owner in possession of the suit land and after his death the parties have inherited the suit land. 4. The plaintiff filed replication and denied the grounds of defence as taken in the written statement including the aforesaid ground. 5. After the conclusion of the evidence of the parties when the suit was listed for final arguments, the plaintiff moved an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. 6. The amendment prayed for is to add the following in the title of the plaint : "Suit for declaration that if the plaintiff and defendant No. 2 are not held to have acquire the tenancy right, then the daughters of the deceased Sh. 6. The amendment prayed for is to add the following in the title of the plaint : "Suit for declaration that if the plaintiff and defendant No. 2 are not held to have acquire the tenancy right, then the daughters of the deceased Sh. Roshan Lal will also get the share as per Hindu Succession Act, 1956." The following additions are prayed for in para 2 of the plaint : "2-A. That if the plaintiff and defendant No. 2 are not held to have acquire the tenancy right after the death of the father of the plaintiff, then in the alternative the plaintiff, defendants and Kalian Devi, Mahanti Devi, Sukh Dei Devi, Inderi Devi, Anto Devi and Parvati Devi, daughters, are co-owners in joint possession having the equal share in the suit land, since the father of the plaintiff has expired after coming into the operation of the Hindu Succession Act." Further, the prayer clause is sought to be amended as follows: "If the plaintiff and defendant No. 2 are not held to have acquire the tenancy right in equal share then in the alternative the plaintiff, defendants are co-owners in joint possession in equal share over the suit land." 7. The learned trial Judge dismissed the application on the grounds that no reasons have been spelled out by the plaintiff for explaining the filing of the application at a belated stage and that if the application is allowed, it will change the cause of action and the nature of the suit and will re-open the entire case to the detriment of the defendants. 8. I have heard the learned counsel for the parties and have also gone through the relevant records of the case. 9. Order 6, Rule 17 of the Code of Civil Procedure reads as follows: "Order VI 1 to 16 *** *** *** 17. Amendment of pleadings—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 10. Amendment of pleadings—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 10. From a bare reading of the aforesaid provisions it is clear that only such amendments which may be necessary for the purpose of determining the real questions in controversy between the parties, may be allowed and thus the power to allow amendment under these provisions depends upon "the real controversy" test being satisfied. As already seen above, the real controversy between the parties is that the plaintiff claims to have succeeded to the suit land along with proforma defendant on the ground that it was a parcel of tenancy held by his father as a non-occupancy tenant and the defendant could not have inherited this property being a parcel of tenancy. The plea of the defendant and proforma defendant is that the suit land was owned by their predecessor-in-interest and rightly devolved upon the parties as per the Succession Act. Be it stated that the alleged legal representatives of the predecessor-in-interest of the deceased under whom the parties are claiming, are not party to the suit. Even if it is assumed that there are other legal heirs of the deceased, the cause of action to claim inheritance of the estate of the deceased as per their shares accrues to them and it is not for the plaintiff to plead their case in their absence. Evidently, the plea sought to be raised by the plaintiff by way of amendment is not necessary for the purpose of determining the controversy between the parties to the suit, therefore, the amendment prayed for has been rightly dismissed by the learned trial Judge and the impugned order does not call for any interference. 11. As a result, the revision petition fails and is accordingly dismissed. The records of the trial Court be returned forthwith. The parties, through their learned counsel, are directed to appear in the trial court on 2.9.2000. Revision dismissed.