Khowalal Sinha vs Dayaram Sinha And Ors

Goutam Bhaduri, J

The present petition is against the order dated 18.05.2018 whereby the amendment proposed by the defendant/petitioner has been dismissed on the

ground that the same was filed at the belated stage and the cost was also imposed on the ground that the case was already at the stage of evidence.

Learned counsel for the petitioner submits that the suit is in between the family members. The defendant No.1/petitioner is one of the family

members from whom the plaintiff is claiming his right through his mother. It is contended that the mother during her lifetime had settled the property in

favour of the defendant No.1 and they will live with the defendant No.1, to establish the same that part is also necessary to bring on record and it will

have a necessary bearing considering the real controversy in between the parties. It is further contended that the defendant/petitioner is in the

possession of the subject land, therefore, when the claim has been made by the plaintiff for the same subject land, the right of the defendant would be

seriously jeopardized, if in case the amendment is not allowed. He further submits that the plaintiff's evidence has not yet begun, therefore, no

prejudice would be caused. He placed his reliance in the case of Usha Balashaheb Swami and others Versus Kiran Appaso Swami and others

{(2007) 5 SCC 602}.

Perused the documents and the plaint. The instant petition for amendment was filed on behalf of the defendant No.1. Perusal of the amendment

petition would show that the claim has been made that their mother namely Dehrin Bai and one Heera Lal during their lifetime have settled the

property in favour of the defendant. The suit appears to be in between the family members, therefore, taking into the nature of the suit and the

proposed amendment and the submission is made at the bar, the evidence has not yet begun, considering the nature of the amendment sought for, it

cannot be stated that it has no nexus with the issue involved, therefore, the order dated 18.05.2018 is set aside and the petitioner is allowed to make

amendment to advance the cause of justice on merits subject to payment of cost of Rs.2000/- to the plaintiff.

Accordingly, the petition stands allowed.