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2014 DIGILAW 466 (RAJ)

Jagdish Prasad v. Brahma Lal

2014-02-12

BELA M.TRIVEDI

body2014
Hon'ble TRIVEDI, J.—With the consent of the learned counsels for the parties, the writ petition is decided finally at the admission stage. 2. The petitioner-plaintiff has filed the present writ petition under Article 226 and 227 of the Constitution of India challenging the order dated 25.5.13 passed by the Addl. District Judge No.1, Beawar, District Ajmer (hereinafter referred to as 'the trial court') in Civil Suit No. 57/11, whereby the trial court has dismissed the application of the petitioner-plaintiff seeking second amendment under Order VI Rule 17 of CPC. 3. The facts in nutshell giving rise to the present petition are that the petitioner-plaintiff has filed the suit seeking partition, declaration and injunction in respect of the suit property. It may be noted that the respondent No.1 happens to be the brother and respondent Nos. 2 and 3 happen to be the sisters of the petitioners. The respondent No.4 Ladu Ram though was party-defendant in the suit, had expired during the pendency of the suit on 1.12.11. On the death of Shri Ladu Ram, the petitioner submitted an application seeking amendment in the plaint for his 1/4th share in the suit property. The said amendment application was allowed by the trial court vide order dated 4.3.13, and on the same day, the petitioner submitted another application seeking amendment in the suit claiming 1/2 share in the suit property. The said second amendment application has been rejected by the trial court by the impugned order, against which the present writ petition has been filed. 4. It has been sought to be submitted by the learned counsel for the petitioner that the proposed amendment would not change the nature of the suit and it was only because of the death of the father Ladu Ram and the contentions raised by the respondents-defendants in the written statement that the respondent Nos. 2 and 3 had relinquished their share in favour of the respondent No.1, the amendment was sought in the plaint. The learned counsel has placed reliance on the decision of the Apex Court in the case of Rameshkumar Agarwal vs. Rajmala Exports Private Ltd. & Ors. (2012) 5 SCC 337 and on the case of Pankaja & Anr. vs. Yellappa (dead) by Lrs. & Ors. The learned counsel has placed reliance on the decision of the Apex Court in the case of Rameshkumar Agarwal vs. Rajmala Exports Private Ltd. & Ors. (2012) 5 SCC 337 and on the case of Pankaja & Anr. vs. Yellappa (dead) by Lrs. & Ors. (2004) 6 SCC 415 = RLW 2004(4) SC 509, to submit that the courts should adopt liberal approach instead of hypertechnical approach in allowing amendment in the pleadings. 5. However, the learned counsel Mr. S.R. Surana for the respondent has vehemently submitted that the amendment sought in the second application would change the very nature of the suit and, therefore, the trial court has rightly not allowed the same. According to him, the contention with regard to the relinquishment of the shares by the respondent Nos.2 and 3 in favour of the respondent No.1 was already raised in the written statement and thereafter the petitioner-plaintiff had sought the first amendment in the plaint. Hence, according to him the petitioner should have exercised due diligence while making first application for amendment which he had failed to exercise. Mr. Surana has relied upon the decisions of the Apex Court in the case of J. Samuel & Ors. vs. Gattu Mahesh & Ors. (2012) 2 SCC 300 , in support of his submission that omission of a specific plea should not be permitted to be corrected by way of amendment when the due diligence was not exercised by the party. 6. In the instant case, it appears that the plaintiff had filed the suit on 14.3.11 seeking his 1/5th share in the suit property. At the relevant time the father of the plaintiff-petitioner was also made party-defendant in the suit. The respondents-defendants had filed the written statement on 19.9.11 and thereafter the father Ladu Ram died on 1.12.11. The trial court framed the issues from the pleadings of the parties on 22.11.12. Thereafter the petitioner-plaintiff sought amendment in the plaint by filing an application on 25.2.13 and also submitted the affidavit of the witnesses for examination-in-chief. The said application of the petitioner seeking amendment was allowed by the trial court vide order dated 4.3.13, however before the said order could be pronounced by the trial court, the petitioner again moved an application on the same day, seeking amendment in the plaint, claiming his ½ share in the suit property. As rightly submitted by the learned counsel Mr. As rightly submitted by the learned counsel Mr. Surana for the respondents, the petitioner-plaintiff while seeking second amendment in the plaint had not explained as to why the proposed amendment sought was not incorporated in the first application for the amendment and to that extent the petitioner-plaintiff had failed to exercise due diligence. However, considering the fact that the plaintiff has filed the suit for partition and that the share in the suit property shall be decided by the trial court considering the evidence that may be led by the parties, the amendment sought by the petitioner claiming 1/2 share in the suit property would not as such prejudice the case of the respondents-defendants. It is also pertinent to note that the amendment was sought by the petitioner-plaintiff before the trial had started. As held by the Apex in the cases of Rameshkumar Agarwal vs. Rajmala Exports Private Ltd. & Ors. (supra) and on the case of Pankaja & Anr. vs. Yellappa (dead) by Lrs. & Ors. (supra), the court should adopt a liberal approach and not a hypertechnical approach. The court therefore is of the opinion that the proposed amendment would neither change the nature of the suit nor prejudice the right of the respondents-defendants and, therefore, the same deserves to be allowed in the interest of justice. However, since the petitioner had not exercised the due diligence while seeking amendment for the first time and had again sought amendment for the second time, the amendment proposed is allowed subject to payment of cost of Rs. 10,000/- to be paid to the respondents in the trial court. It is needless to say that the respondents shall be at liberty to file amended written statement within the time that may be fixed by the trial court. 7. In that view of the matter the impugned order passed by the trial court is set aside. The writ petition stands allowed accordingly.