Kalpnana Choudhary and Another vs Debi Dayal Choudhari and Others

Lalit Mohan Sharma, J.—This civil revision application 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.

The suit originally was filed, inter alia, for eviction of the defendants. During 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 petitioners, 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.

Mr. Ghosh has strenuously contended that by permitting the prayer of partition 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 plaintiff''s pleading. He relied upon the decisions in AIR 1922 249 (Privy Council) Divi Seshacharyulu Vs. Divi Lakshminarayanacharyulu and Others, and The Municipal Corporation of Greater Bombay v. Lala Pancham AIR 1965 S.C. 1005.

On behalf of the plaintiffs, Mr. Kamla Pati Singh argued that the necessity of incorporating this additional prayer 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. Vs. Rev. Father K.C. Alexander and Others, L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. AIR 1967 SC 357 Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, and Nichhalbhai Vallabhai and Others Vs. Jaswantlal Zinabhai and Others, .

Mr. Singh appears to be right when he says that, if there is a development in the circumstances of a case, which rendered the original reliefs made in the plaint inadequate, amendment should be liberally granted. In the case of Nair Service Society (supra) the principle was discussed at some length in paragraphs 29, 30 and 31. The case in Ma shwe Mya (supra) relied upon by Mr. Ghosh was also considered in paragraph 30. In none of the cases relied upon by Mr. Ghosh this aspect of the matter arose for consideration and they are, therefore, not helpful. In paragraph 31 the Supreme Court, in the case of Nair Service Society, also emphasised the fact that the power of amendments was a discretionary one. In the case of L.J. Leach and Co. (ibid) the Court observed that on of the factors to be taken into account is interest of justice. It was repeated in the case of Pirgonda Hongonda Patil (supra) and Nichhalbhai Vallabhai (supra) and then the Supreme Court observed that the object of the rule for allowing amendment to 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. If a decree for partition 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 amendment, and, in the circnmstances, 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 costs.