Dhani Ram vs Lachhman Dass and Others

R.S. Pathak, C.J.—This is a Plaintiff''s revision petition u/s 115 of the CPC directed against an order of the trial court refusing to allow an amendment of the plaint.

The Plaintiff brought a suit for possession alleging that one Malhu had sold the land to Defendant No. I, that the land was ancestral and the alienation was contrary to custom, that Malhu had died and as his collateral he was entitled to succeed after his death. In the plaint, the sale to Defendant No. 1 was indicated as the cause of action.

The Defendant No. 1 filed a written statement asserting that the suit for possession was incompetent in the life time of the Plaintiff''s father who was the nearest heir of Malhu.

The Plaintiff filed an application for amendment of the plaint by the addition of a paragraph stating that the Plaintiff''s father Wazira did not contest the alienation, that the omission on his part to sue was materially prejudicing the reversionary rights of the Plaintiff to succeed to the land after the death of Malhu and Wazira, and that as he could not sue for possession during the life time of Wazira he was now seeking the relief for declaration. Certain consequential reliefs were also prayed for.

The learned Senior Subordinate Judge, Kangra at Dharamsala, has rejected the amendment on the ground that the amendment sought amounts to a change in the nature of the suit and introduces a new cause of action.

The Plaintiff now applies against that order.

I have heard learned Counsel for the parties. The case, as originally set out by the Plaintiff, is that he is entitled to possession of the land in dispute as a collateral on the death of Malhu. The impression given by the pleading is that because of the death of Malhu:the Plaintiff is entitled to succeed him in present and, therefore, he is:entitled to present possession. The case does not proceed on the basis that the father is an intermediate heir. It is clear that the cause jof action now sought to be introduced is different from that on which Ithe suit has been originally founded. The cause of action now is the omission of Wazira to sue; it is for that reason that the Plaintiff finds jhimself compelled to sue for a declaration. The case now framed Irelies on paragraph 67 of Rattigan''s Digest of Customary Law. There is no doubt that the original cause of action is sought to be displaced by a different one. The order made by the learned Senior Subordinate Judge rejecting the amendment application must be sustained.

The revision petition fails and is dismissed, but in the circumstances there is no order as to costs.