Gaffar Bhat vs Ghani Bhat and Ors.

This revision is directed against the order dated 2071981, inadvertently dated as 2071980, passed by Munbiff Pulwama rejecting plaintiff's

request for amendment of the plaint.

The dispute in the suit relates to the property left by Ismail Bhat. The plaintiff and defendants 1&2 are the sons of the deceased while defendants

3 & 4 are his daughter and widow respectively, Previously defendants 1&2 brought a suit against the present plaintiff and defendants 3 & 4 for

declaration to the effect that they were the exclusive owners of the property left by Ismail Bhat. While the suit was pending, the parties excluding

the present plaintiff entered into a compromise as a result of which a declaratory decree was passed in favour of the present defendants 1 & 2. The

present plaintiff was given up in that suit. He subsequently brought a suit for declaration to the effect that the aforesaid decree was not binding on

him and that he was as much a sharer as defendants 1 & 2. During the pendency of this suit he asked for the amendment of the plaint. The motion

for amendment was rejected by the trial court. Hence this revision.

The plaintiff's case in the plaint was that defendant No. 3 Mst. Mali was the daughter of the deceased Ismail Bhat who had been married outside

her father's house and as such she was not entitled to succeed to the property left by her father. His further case was that the widow of the

deceased was entitled to share the property equally with the sons of the deceased but she could retain the property till her death or remarriage. In

the original plaint the plaintiff did not however ask for any additional relief to the effect that he, further two sons and window of the deceased were

entitled to share the property equally. He also did not specifically set up tie custom that daughters married outside their fath3r's house were not

entitled to succeed to their father's property nor also that the widow could succeed till her death or remarriage. By way of amendment the plaintiff

asked for permission to set up the custom specifically and also to ask for the additional relief. He even filed an amended plaint with the application

for amendment. The trial court dismissed the application as vague. It is true that the application is not in a congenital form which makes it difficult to

understand at first thought as to what the plaintiff wants. But when read with the amended plaint, it is not difficult to decipher the proposed

amendment. As already stated the amendment is aimed at pleading the custom specifically and asked for the additional relief. The proposed

amendments do not change the character of the suit. They are intimately connected with the case set up by the plaintiff in the original plaint. In fact

the amendments sought in the body of the plaint are intended to elaborate the case set out by the plaintiff in the plaint and that in the prayer clause

intended to enlarge the scope of the relief, which is closely connected with the facts pleaded in the plaint. In these circumstances the lower court

ought have allowed the amendment. The order to the contrary made by the court is not sustainable in law and must be set aside.

The result there fore is that this revision succeeds and is allowed. The impugned, order is set aside and it is directed that that the amended plaint

shall be taken on record on payment of Rs. 20/ as costs. The defendant shall be Allowed to file fresh written statement in reply to the amended

plaint and thereafter the trial court shall proceed to deal with the matter in accordance with Law.